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END USER LICENSE AND SERVICE AGREEMENT | VAIL VR
This End User License and Service Agreement (this "Agreement") governs your download and use of our virtual reality game VAIL VR (the “Game”), including any services, content, Materials, products, or purchases offered by us in connection with the Game (collectively, the “Service”). The Service is provided to you by AEXLAB Inc. ("AEXLAB", “us”, “we”, “our”).
Please read this Agreement carefully. It is a legal document that explains your rights and obligations related to your use of our Service. If you are either under the age of majority in your jurisdiction or under eighteen (18) years old, please ask your parent or guardian to read and accept this Agreement for you before you use the Service. By downloading, installing, or using the Service, or “clicking to accept,” or otherwise agreeing to be bound by the terms of this Agreement, you accept the terms of this Agreement with AEXLAB. If you do not agree to these terms, you are not permitted to download, install, copy, or use the Service. To reject these terms, you must not “click to accept” these terms or download, install, copy, or use the Service.
1. ARBITRATION AND IMPORTANT DISPUTE RESOLUTION TERMS. WHEN YOU AGREE TO THIS AGREEMENT, YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND US THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTIONS 14 (“GOVERNING LAW AND FORUM CHOICE”) AND 15 (“DISPUTE RESOLUTION”) BELOW FOR DETAILS REGARDING ARBITRATION. THIS AGREEMENT ALSO INCLUDES A WAIVER OF RIGHTS BY YOU TO BRING A CLASS ACTION AGAINST US AND A LIMITATION ON DAMAGES THAT YOU CAN COLLECT FROM US THAT MAY ARISE OUT OF YOUR USE OF THE SERVICE. BY USING THE SERVICE, YOU AGREE TO THESE PROVISIONS. IF YOU DO NOT AGREE TO THESE PROVISIONS, YOU MAY NOT DOWNLOAD, INSTALL, COPY, OR USE THE SERVICE.
2. CHANGES TO AGREEMENT. We reserve the right to update this Agreement at any time. If we do, the updated Agreement will be communicated to you, in our sole discretion, by email, within the Service itself, by posting it on our website, or by requiring you to “click to accept” the Agreement. If you don’t agree to be bound by the updated Agreement, then, except as otherwise provided in Section 15(h) “Effect of Amendment,” you may not use the Service anymore. Since our Service is evolving over time, we may also change or discontinue all or any part of the Service, at any time and without notice. We reserve the right to unilaterally deploy patches, updates, or upgrades to the Service.
3. REQUIREMENTS FOR USING THE SERVICE.
a. Eligibility. You may use the Service only if you are 13 years or older, capable of forming a binding contract with Aexlab, and are not barred from using the Service under applicable law or otherwise. Parents and guardians of children either under the age of majority in their jurisdiction or less than 18 years old are responsible for all use of the Service by such children whether or not such uses were authorized by the parents or guardians.
b. Availability of Service. You are accessing our Service through certain software providers which may also act as a download agent, which includes, but is not limited to, platforms like Steam (“Platforms”). To access, purchase, or download our Game through a Platform, you may be required to create an account with that Platform (a “Platform Account”), and you acknowledge and agree that the Platform’s terms and conditions may apply to your use of the Platform, your Platform Account, and your use of our Service through the Platform. In the event of any conflict between any Platform’s terms and conditions and this Agreement, this Agreement will take priority and control. AEXLAB does not guarantee that the Service will be available at all times or at any given time or that AEXLAB will continue to offer the Service for any particular length of time. AEXLAB makes no warranty or representation regarding the availability of the Service and reserves the right to modify or discontinue the Service in its sole discretion without notice, in whole or in part. Notwithstanding anything to the contrary, you acknowledge and agree that the Service, in whole or in part, may be terminated at AEXLAB’s sole discretion without notice to you, and any and all licenses granted to you may be terminated. You assume any and all risk of loss associated with the termination of the Service.
c. Accounts. When you access the Service through a Platform, we may receive certain information about you from your Platform Account, as described in our Privacy Policy. We may use this information to create an account for your use of our Service, which you may supplement with additional information through the account creation functionality of the Services (an “Account”). It’s important that you ensure that your Account information is accurate, complete, and up-to-date. If you don’t, we reserve the right to suspend or terminate your Account in our sole discretion.
d. Access. You are solely responsible for any third-party costs you incur to use the Service. 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 Service. AEXLAB makes no warranty that the Service can be accessed or used on all systems, controllers, or devices, by means of any specific internet or other connection provider, or in all territories. The Service may integrate, be integrated into, or be provided in connection with third-party services and content. AEXLAB does not control those third-party services and content and you should read the terms of use and privacy policies that apply to such third-party services and content.
4. LIMITED LICENSE TO THE SERVICE.
a. AEXLAB Materials. For purposes of this Agreement, “Materials” means text, graphics, images, music, software, audio, video, works of authorship of any kind, information or other materials that are posted, generated, provided, or otherwise made available through or in connection with the Service, and In-Game Content (as defined below). AEXLAB and its licensors exclusively own all right, title, and interest in and to the Service and Materials, including all associated intellectual property rights and You acknowledge and agree that you have no ownership or property interest in the Service or Materials whatsoever, and you further acknowledge and agree that to the fullest extent permitted by applicable law, all rights in and to the Service and Materials will forever be owned by and inure to the benefit of AEXLAB and its licensors.
b. In-Game Content. AEXLAB may offer certain upgrades, add-ons, features, and other options within and via the Service (“In-Game Content”). In-Game Content may include, for example, character skins, weapons or other gear for your character, items for your armory, or other items that may improve, alter, or modify the in-game experience. We may offer access to In-Game Content as part of a special event or “season,” and these special events and seasons may be subject to additional terms and conditions. You may purchase access to certain In-Game Content, or receive access to In-Game Content in connection with a purchase, as described below in Section 6. You may also be able to obtain certain In-Game Content without purchase, such as through an event or through gameplay. All In-Game Content are and remain the property of AEXLAB. In-Game Content has no monetary value and is not redeemable or refundable for any “real world” money or anything of monetary value. You cannot transfer, sell, or exchange In-Game Content. Your access to and use of In-Game Content is subject to the license terms and restriction\s set forth in this Agreement, and we may revoke your license to such In-Game Content at any time consistent with this Agreement. Additional restrictions may apply to your use of In-Game Content, including any restrictions related to the functionality of the Service or that may be communicated to you separately via the Service. To the fullest extent allowed by applicable law, we may in our sole discretion and without notice modify, substitute, replace, suspend, cancel, or eliminate any In-Game Content, including your ability to access or use In-Game Content.
c. License Keys. We may offer for purchase or otherwise make available unique keys that you can use to access the Game through a Platform (a “License Key”). License Keys are personal to you, and may not be transferred or sold. If we reasonably believe that you have transferred or sold a License Key, engaged in fraud, or otherwise violated this Agreement, we may disable a License Key, or otherwise revoke your rights to use the Game in connection with a License Key. License Keys are not redeemable for money or anything with monetary value.
d. Limited License. Subject to your compliance with this Agreement and any system requirements, AEXLAB grants to you a limited, non-exclusive, non-transferable license, with no right to sublicense, (i) to access and view the Materials (including any In-Game Content you have purchased or otherwise obtained access to in accordance with this Agreement); (ii) if you have a valid License Key to use the Game, or you have purchased the Game through a Platform, or you have otherwise been granted access to the Game by AEXLAB, to download and install the Game on a computer you own or control; in each case of (i) and (ii) solely in connection with your permitted use of the Service and solely for your personal use. Except as expressly permitted in this Agreement, you may not: (w) copy, modify, or create derivative works based on the Service or any Materials; (x) distribute, transfer, sublicense, lease, lend, or rent the Service to any third party; (y) reverse engineer, decompile, or disassemble the Service; or (z) make the functionality of the Service available to multiple users through any means. AEXLAB reserves all rights in and to the Service, including the Game and Materials, not expressly granted to you under this Agreement. The Service is licensed, not sold, for your use. Your license confers no title or ownership in the Service and should not be construed as a sale of any rights in the Service. This Agreement will also apply to updates you may obtain for the Service, provided that such update may be accompanied by additional terms.
e. Streaming. We welcome and encourage you to stream your experiences with our Game provided you: (i) limit such streaming to non-commercial purposes; (ii) do not charge a fee for viewing or access to your streamed content; (iii) maintain your stream within the “T” guidelines of the ESRB (e.g., no swearing or nudity) or similar rating boards; (iv) do not host competitions without our express written consent, which may be subject to further requirements; and (v) clearly indicate when your stream is being sponsored by including the pertinent text in your stream: “Sponsored by _______ (inserting your sponsor’s name)”.
f. Ownership. All title, ownership rights, and intellectual property rights in and to the Service are owned by AEXLAB, affiliates of AEXLAB, or AEXLAB'S licensors. The Service is protected by the copyright laws of the United States of America, international copyright treaties, conventions, and other laws. The Service may contain certain licensed materials, and AEXLAB’s licensors may protect their rights in the event of any violation of this Agreement. Notwithstanding anything to the contrary, you acknowledge and agree that you shall have no ownership or other property interest in any account stored or hosted on an AEXLAB system, and you further acknowledge and agree that all rights in and to these accounts are and will forever be owned by and inure to the benefit of AEXLAB. AEXLAB may suspend, terminate, modify or delete any of these accounts at any time for any reason or no reason, with or without notice to you.
5. GENERAL PROHIBITIONS AND CONDITIONS TO GRANT OF LICENSE. The licenses granted to you in this Agreement are subject to the limitations outlined in this Section. Any use of the Service in violation of these limitations will result in an immediate termination of your license and continued use of the Service and will be considered an infringement of AEXLAB’s copyrights and other rights in and to the Service. You agree that you will not do, or allow, any of the following:
a. use the Service for commercial purposes (such as virtual reality arcades) without AEXLAB’s prior consent, or sell, rent, lease, license, distribute, or otherwise transfer the Service;
b. make copies of the Service or Materials, in whole or in part, and, without limiting the foregoing, copy Service or Materials onto a hard drive or other storage device unless the Service or Materials itself makes a copy during installation, or unless you are downloading the Service or Materials from an authorized Platform or AEXLAB online retailer;
c. use the Service in a network, multi-user arrangement, or remote access arrangement, including any online use except as included in the Service’s functionality;
d. reverse engineer, derive source code, modify, decompile, disassemble, or create derivative works of the software and other proprietary technology in the Service, in whole or in part;
e. create, develop, modify, distribute, or use any unauthorized software to gain advantages in any offline, online, or multiplayer game modes of the Game;
f. remove or bypass any measure that prevents misuse of the Service, or remove, disable, or circumvent any proprietary notices or labels contained on or within the Service;
g. forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Service or Materials to send altered, deceptive, or false source-identifying information;
h. collect or store any personally identifiable information from the Service from other users of the Service without their express permission, or otherwise invade the privacy or violate or infringe any right of any person or entity, including, without limitation, any intellectual property right;
i. violate any applicable law or regulation;
j. engage in any conduct that we or our licensors deem objectionable (i.e., cheating), violent, or discriminatory, or that may disrupt another user’s enjoyment of the Service, including by harassing other users (i.e., “trolling”);
k. transmit any user generated content that we deem to be disruptive, unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, hateful, or racially, sexually, ethnically, or otherwise objectionable;
l. impersonate any person or entity, including but not limited to AEXLAB;
m. disrupt normal Service functionality, or otherwise act in a manner that negatively affects other participants and/or the overall Service experience;
n. post or transmit any unsolicited advertising, promotional materials, or any other forms of solicitation;
o. encourage or enable any other individual to do any of the foregoing.
6. PAYMENTS. When you purchase access to our Game through a Platform, or a License Key, or In-Game Content (each, a “Transaction”), you expressly authorize the Platforms (or the Platforms’ third-party payment processors) to charge you for such Transaction. They may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card, and your email and postal addresses for billing and notification (such information, “Payment Information”). You acknowledge and agree that the Platforms’ terms and conditions may also apply to your Transaction. When you initiate a Transaction, you authorize the Platforms to provide your Payment Information to third parties so they can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction. SUBJECT TO THE REFUND POLICY OF THE RELEVANT PLATFORM, YOUR PURCHASE IS FINAL AND YOU WILL NOT BE ABLE TO CANCEL THE PURCHASE AND/OR RECEIVE A REFUND OF YOUR PURCHASE AT ANY TIME. But if something unexpected happens in the course of completing a Transaction, the Platforms reserve the right to cancel your Transaction for any reason and, if they cancel your Transaction, they’ll refund any payment you have already remitted to them for such Transaction.
7. BETAS. From time to time, we may offer a beta version of our Service (“Betas”). Betas are works-in-progress, are not guaranteed to work properly, and may cause malfunctions or other issues with your computer or other device or system. When you use a Beta, you acknowledge and agree to the following additional terms: (a) AEXLAB may automatically delete or modify any software, data, Materials, or other materials or information related to the Beta, including those stored on your computer, for any reason at any time; (b) AEXLAB may discontinue or terminate your access to a Beta at any time, which would render your Beta unplayable or unable to function properly; (c) if AEXLAB discontinues or terminates a Beta, you will delete any local instance of the Beta on your computer and all Materials, data, materials and other information you received from AEXLAB in connection with the Beta; (d) you will have no rights to any compensation based on your participation in a Beta; and (e) your participation in a Beta does not entitle you to receive access to the full commercial version of the Game or other portion of the Service, and you may be required to separately purchase the full commercial version of the Game.
8. LINKS TO THIRD PARTY WEBSITES OR RESOURCES. The Service may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products, or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
9. TERMINATION.
a. Voluntary Termination by You. You may delete your Account or stop using the Service at any time by permanently deleting any installation of the Game and destroying all copies of the Game in your possession or control. This action may not be reversible, and you may lose all, or some portion of, the data associated with your Account. Termination of your Account will not relieve you of any obligation that may have arisen prior to such termination, including the obligation to pay Fees.
b. Termination by Company. Without prejudice to any other rights of AEXLAB, this Agreement will terminate automatically if you fail to comply with any of its terms and conditions and we reserve the right to terminate this Agreement and your access to all or any part of the Service at any time and for any reason without prior notice or liability. Causes for such termination include where: (i) we believe in our sole discretion that you have violated these Terms or have otherwise engaged in any activities that may harm or damage the reputation, rights, or property of the Service, its users, or any other person, (ii) we believe in our sole discretion that you have violated applicable laws, regulations, or third party rights, or participated in fraudulent or illegal activities, (iii) we believe in our sole discretion that such action is reasonably necessary to protect the personal safety or property of the Company, its users, or third parties, (iv) you request that we cancel or terminate your Account; (v) we receive a request or order from law enforcement, a judicial body, or other government agency; (vi) provision of the Service to you is or may become unlawful; or (vii) unexpected technical or security issues or problems occur. Any such termination or suspension will be made by us in our sole discretion and we will not be responsible to you or any third party for any damages that may result or arise out of such termination or suspension of your Account or access to the Service. In the event of termination, you must destroy all copies of the Game and all of its component parts on your computer system.
c. Effect of Termination. Upon termination of your Account, you may lose all access to the Service or any portions thereof, including, but not limited to, your Account and data. Additionally, after a period of time, we may in our discretion delete information and data stored in or as a part of your Account. The following provisions will survive termination of this Agreement: Sections 3-6, 9, 11-15.
10. COPYRIGHT NOTICE. For residents in North America: if you believe that any user generated content or any other content appearing in the Service has been copied in a way that constitutes copyright infringement, please forward the following information to the copyright agent named below. Your copyright infringement notification must comply with the digital millennium copyright act ("DMCA"). You are encouraged to review 17 U.S.C. § 512(c)(3) or consult with an attorney prior to sending a notice hereunder. To file a copyright infringement notice, you will need to send a written communication that includes the following to the address listed below: (a) your name, address, telephone number, and email address; (b) a description of the copyrighted work that you claim has been infringed; (c) the exact URL or a description of where the alleged infringing material is located; (d) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (e) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and (f) a statement by you, under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
AEXLAB Inc.
44 W. Flagler Street, Suite 600
Miami, Florida 33131
Attn: Legal Department
E-mail: legal@aexlab.com
Please note that the DMCA provides that you may be liable for damages (including costs and attorney fees) if you knowingly misrepresent that material or activity is infringing. Please also note that the information provided in your copyright infringement notice may be provided to the person responsible for the allegedly infringing material. It is our policy, in appropriate circumstances and at our discretion, to disable or terminate the Account or access of users who repeatedly infringe or are repeatedly charged with infringing the copyrights or other intellectual property rights of others.
11. INDEMNITY. You agree, to the fullest extent permissible under applicable laws, to indemnify, defend, and hold harmless AEXLAB, and its parent, successors, affiliated companies, affiliates, contractors, officers, directors, employees, agents, and its third-party suppliers, licensors, and partners (the “AEXLAB Parties") from and against all losses, damages, liabilities, demands, judgments, settlements, costs and expenses of any kind (including legal fees and expenses), from any claim or demand arising out of or relating to: (i) your access to, use, or misuse of the Service or Materials; (ii) your breach or alleged breach of this Agreement, or any violation of this Agreement; (iii) your failure to comply with applicable laws; (v) the infringement by you or any third-party of any intellectual property, privacy, or other right of any person or entity; or (vi) your breach or alleged breach of any interaction, agreement, right, or policy between you and any other users. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any such matter without the prior written consent of AEXLAB. We will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it. This provision will survive this Agreement and your use of the Service.
12. DISCLAIMER OF WARRANTIES. THE SERVICE AND MATERIALS (WHETHER OWNED OR LICENSED), AND ANY USER GENERATED CONTENT THAT MAY BE MADE AVAILABLE TO YOU IN CONJUNCTION WITH OR THROUGH THE SERVICE, ARE PROVIDED “AS IS”, “AS AVAILABLE”, AND "WITH ALL FAULTS" BASIS WITHOUT A WARRANTY OF ANY KIND WHATSOEVER. WITHOUT LIMITING THE FOREGOING, AND TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THE AEXLAB PARTIES EXPLICITLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER STATUTORY, EXPRESS, OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WE MAKE NO WARRANTY THAT THE SERVICE OR MATERIALS WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. WE MAKE NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR RELIABILITY OF ANY SERVICE OR MATERIALS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ANY AEXLAB PARTIES OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. Our Service, including our Game, may require the use of third-party hardware, including headsets or sensors (e.g., Oculus Rift or HTC Vive hardware products) or third-party software, such as Platforms (“Third-Party Materials”). You acknowledge and agree that AEXLAB is not responsible for Third-Party Materials, including any damages or malfunctions that arise from your use of our Service in connection with such Third-Party Materials. You acknowledge and agree that you are solely responsible for reading any warnings or instructions provided with Third-Party Materials, and for ensuring that your use of our Service, including our Game, complies with such instructions.
13. LIMITATION OF LIABILITY.
a. IN NO EVENT WILL AEXLAB OR THE AEXLAB PARTIES, OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICE OR MATERIALS, BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICE OR MATERIALS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY WHATSOEVER, AND WHETHER OR NOT AEXLAB OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. AEXLAB AND THE AEXLAB PARTIES ASSUME NO LIABILITY OR RESPONSIBILITY WHATSOEVER FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF MATERIALS; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE OR MATERIALS; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY MATERIALS OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY MATERIALS OR USER GENERATED CONTENT THERWISE MADE AVAILABLE THROUGH THE SERVICE; OR (VII) USER GENERATED CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
b. USE OF VIRTUAL REALITY SOFTWARE, INCLUDING OUR GAME, AND ANY THIRD-PARTY MATERIALS, MAY AFFECT HEART AND BREATHING RATE, CAUSE UNINTENDED SIDE EFFECTS SUCH AS MOTION SICKNESS OR DISORIENTATION, OR AGGRAVATE PRE-EXISTING MEDICAL CONDITIONS. YOU EXPRESSLY WAIVE AEXLAB’S AND THE AEXLAB PARTIES’ LIABILITY FOR RISKS INHERENT IN THE USE OF VIRTUAL REALITY SOFTWARE AND HARDWARE, YOU ASSUME ALL RISKS IN THE USE OF VIRTUAL REALITY SOFTWARE AND HARDWARE, AND AEXLAB AND THE AEXLAB PARTIES WILL NOT BE LIABLE TO YOU FOR ANY CAUSE OF ACTION OR UNDER ANY THEORY OF LIABILITY ARISING FROM SUCH RISKS.
c. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF AEXALB OR THE AEXLAB PARTIES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICE OR MATERIALS EXCEED THE AMOUNTS YOU HAVE PAID TO AEXLAB FOR USE OF THE SERVICE OR MATERIALS IN THE 12 MONTH PERIOD PRIOR TO THE EVENTS OR CIRCUMSTANCES GIVING RISE TO ANY CLAIMS OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO AEXLAB, AS APPLICABLE.
d. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THIS AGREEMENT BETWEEN YOU AND AEXLAB.
14. GOVERNING LAW AND FORUM CHOICE. This Agreement and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of Florida, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 15 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that you and AEXLAB are not required to arbitrate will be the state and federal courts located in Miami-Dade County, Florida, and you and AEXLAB each waive any objection to jurisdiction and venue in such courts and irrevocably consent and submit to the personal and exclusive jurisdiction of such courts for the purpose of litigating any such non-arbitrable action.
15. DISPUTE RESOLUTION.
a. Initial Dispute Resolution. AEXLAB’s customer support department is available at ___@aexlab.com to address any concerns you may have regarding the Service. Most concerns are quickly resolved in this manner. The parties will use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which will be a precondition to either party initiating a lawsuit or arbitration.
b. Mandatory Arbitration of Disputes. 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, we each agree that any dispute, claim, or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof or the use of the Service or Material (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative, or consolidated action or proceeding. This arbitration provision is made pursuant to a transaction involving interstate commerce, and the federal arbitration act (the "FAA"). You and AEXLAB agree that the FAA governs the interpretation and enforcement of this Agreement. 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. This arbitration provision will survive termination of this Agreement.
c. Location of Arbitration. Arbitration will be initiated in Miami, Florida, and you and AEXLAB agree to submit to the personal jurisdiction of any federal or state court in Miami-Dade County, Florida, 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.
d. Opt-out: You have the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by email at optout@aexlab.com within thirty (30) days following the date you first agree to this Agreement.
e. Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Agreement. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org. In a dispute involving $10,000 or less, any hearing will be telephonic unless the arbitrator finds good cause to hold an in-person hearing instead. To the extent the forum provided by AAA is unavailable, the Company and you agree to select a mutually agreeable alternative dispute resolution service and that such alternative dispute resolution service will apply the AAA Rules. Any arbitration hearings will take place in Miami, Florida, unless we both agree to a different location. The parties agree that the arbitrator will have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability, and scope of this arbitration agreement. The arbitrator may award the same damages to you individually as a court could. The arbitrator may award declaratory or injunctive relief to you only individually, and only to the extent required to satisfy your individual claim. The arbitrator has the power to award attorney’s fees and costs to the prevailing party, which will be part of the arbitration award. The arbitrator’s decision will be written and binding on the parties.
f. Class Action Waiver. THE PARTIES AGREE THAT ANY ARBITRATION WILL 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 AEXLAB 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.
g. 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 the state or federal courts in Miami-Dade County, Florida 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 Service under this Agreement. Either party may also seek relief in a small claims court for disputes or claims within the scope of those court's jurisdiction.
h. Effect of Amendments. Notwithstanding the provisions of Section 2 “Changes to Agreement” above, if AEXLAB changes any of the terms of this Section 15 “Dispute Resolution” after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you may reject any such change by sending us written notice (including by email to ___@aexlab.com) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of AEXLAB’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and AEXLAB in accordance with the terms of this Section 15 “Dispute Resolution” as of the date you first accepted these Agreement (or accepted any subsequent changes to these Agreement). Additionally, the parties agree that if we make any amendment to this Agreement, that amendment will not apply to any Dispute that was initiated prior to the effective date of the amendment or of which the parties had actual notice before the effective date of the amendment.
i. Severability. With the exception of any of the provisions in Section 15(f) of these Terms ("Class Action Waiver"), if an arbitrator or court of competent jurisdiction decides that any part of this Agreement is invalid or unenforceable, the other parts of this Agreement will still apply.
16. GENERAL TERMS.
a. Entire Agreement. This Agreement and any other document referred to in this Agreement constitute the entire agreement between AEXLAB and you regarding the Service and Materials. This Agreement supersede and replace any and all prior oral or written understandings or agreements between AEXLAB and you regarding the Service and Materials.
b. Severability. To the extent the applicable law permits, the provisions of this Agreement will be interpreted to the maximum extent possible. If any of the provisions in this Agreement are held unenforceable, the remaining provisions will not be affected.
c. No assignment. You may not assign, transfer, or delegate this Agreement or your rights and obligations hereunder without AEXLAB’s prior written consent.
d. No Waiver. No waiver by AEXLAB of any right, term, or condition set out in this Agreement will be deemed a further or continuing waiver of such right, term, or condition or a waiver of any other term or condition, and any delay or failure of AEXLAB to assert a right or provision under this Agreement will not constitute a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized officer of AEXLAB. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
e. Contact Information. If you have any questions about this Agreement or the Service, please contact AEXLAB at legal@aexlab.com or by mail at AEXLAB Inc., 44 W. Flagler Street, Suite 600, Miami, Florida 33130.
This End User License and Service Agreement (this "Agreement") governs your download and use of our virtual reality game VAIL VR (the “Game”), including any services, content, Materials, products, or purchases offered by us in connection with the Game (collectively, the “Service”). The Service is provided to you by AEXLAB Inc. ("AEXLAB", “us”, “we”, “our”).
Please read this Agreement carefully. It is a legal document that explains your rights and obligations related to your use of our Service. If you are either under the age of majority in your jurisdiction or under eighteen (18) years old, please ask your parent or guardian to read and accept this Agreement for you before you use the Service. By downloading, installing, or using the Service, or “clicking to accept,” or otherwise agreeing to be bound by the terms of this Agreement, you accept the terms of this Agreement with AEXLAB. If you do not agree to these terms, you are not permitted to download, install, copy, or use the Service. To reject these terms, you must not “click to accept” these terms or download, install, copy, or use the Service.
1. ARBITRATION AND IMPORTANT DISPUTE RESOLUTION TERMS. WHEN YOU AGREE TO THIS AGREEMENT, YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND US THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTIONS 14 (“GOVERNING LAW AND FORUM CHOICE”) AND 15 (“DISPUTE RESOLUTION”) BELOW FOR DETAILS REGARDING ARBITRATION. THIS AGREEMENT ALSO INCLUDES A WAIVER OF RIGHTS BY YOU TO BRING A CLASS ACTION AGAINST US AND A LIMITATION ON DAMAGES THAT YOU CAN COLLECT FROM US THAT MAY ARISE OUT OF YOUR USE OF THE SERVICE. BY USING THE SERVICE, YOU AGREE TO THESE PROVISIONS. IF YOU DO NOT AGREE TO THESE PROVISIONS, YOU MAY NOT DOWNLOAD, INSTALL, COPY, OR USE THE SERVICE.
2. CHANGES TO AGREEMENT. We reserve the right to update this Agreement at any time. If we do, the updated Agreement will be communicated to you, in our sole discretion, by email, within the Service itself, by posting it on our website, or by requiring you to “click to accept” the Agreement. If you don’t agree to be bound by the updated Agreement, then, except as otherwise provided in Section 15(h) “Effect of Amendment,” you may not use the Service anymore. Since our Service is evolving over time, we may also change or discontinue all or any part of the Service, at any time and without notice. We reserve the right to unilaterally deploy patches, updates, or upgrades to the Service.
3. REQUIREMENTS FOR USING THE SERVICE.
a. Eligibility. You may use the Service only if you are 13 years or older, capable of forming a binding contract with Aexlab, and are not barred from using the Service under applicable law or otherwise. Parents and guardians of children either under the age of majority in their jurisdiction or less than 18 years old are responsible for all use of the Service by such children whether or not such uses were authorized by the parents or guardians.
b. Availability of Service. You are accessing our Service through certain software providers which may also act as a download agent, which includes, but is not limited to, platforms like Steam (“Platforms”). To access, purchase, or download our Game through a Platform, you may be required to create an account with that Platform (a “Platform Account”), and you acknowledge and agree that the Platform’s terms and conditions may apply to your use of the Platform, your Platform Account, and your use of our Service through the Platform. In the event of any conflict between any Platform’s terms and conditions and this Agreement, this Agreement will take priority and control. AEXLAB does not guarantee that the Service will be available at all times or at any given time or that AEXLAB will continue to offer the Service for any particular length of time. AEXLAB makes no warranty or representation regarding the availability of the Service and reserves the right to modify or discontinue the Service in its sole discretion without notice, in whole or in part. Notwithstanding anything to the contrary, you acknowledge and agree that the Service, in whole or in part, may be terminated at AEXLAB’s sole discretion without notice to you, and any and all licenses granted to you may be terminated. You assume any and all risk of loss associated with the termination of the Service.
c. Accounts. When you access the Service through a Platform, we may receive certain information about you from your Platform Account, as described in our Privacy Policy. We may use this information to create an account for your use of our Service, which you may supplement with additional information through the account creation functionality of the Services (an “Account”). It’s important that you ensure that your Account information is accurate, complete, and up-to-date. If you don’t, we reserve the right to suspend or terminate your Account in our sole discretion.
d. Access. You are solely responsible for any third-party costs you incur to use the Service. 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 Service. AEXLAB makes no warranty that the Service can be accessed or used on all systems, controllers, or devices, by means of any specific internet or other connection provider, or in all territories. The Service may integrate, be integrated into, or be provided in connection with third-party services and content. AEXLAB does not control those third-party services and content and you should read the terms of use and privacy policies that apply to such third-party services and content.
4. LIMITED LICENSE TO THE SERVICE.
a. AEXLAB Materials. For purposes of this Agreement, “Materials” means text, graphics, images, music, software, audio, video, works of authorship of any kind, information or other materials that are posted, generated, provided, or otherwise made available through or in connection with the Service, and In-Game Content (as defined below). AEXLAB and its licensors exclusively own all right, title, and interest in and to the Service and Materials, including all associated intellectual property rights and You acknowledge and agree that you have no ownership or property interest in the Service or Materials whatsoever, and you further acknowledge and agree that to the fullest extent permitted by applicable law, all rights in and to the Service and Materials will forever be owned by and inure to the benefit of AEXLAB and its licensors.
b. In-Game Content. AEXLAB may offer certain upgrades, add-ons, features, and other options within and via the Service (“In-Game Content”). In-Game Content may include, for example, character skins, weapons or other gear for your character, items for your armory, or other items that may improve, alter, or modify the in-game experience. We may offer access to In-Game Content as part of a special event or “season,” and these special events and seasons may be subject to additional terms and conditions. You may purchase access to certain In-Game Content, or receive access to In-Game Content in connection with a purchase, as described below in Section 6. You may also be able to obtain certain In-Game Content without purchase, such as through an event or through gameplay. All In-Game Content are and remain the property of AEXLAB. In-Game Content has no monetary value and is not redeemable or refundable for any “real world” money or anything of monetary value. You cannot transfer, sell, or exchange In-Game Content. Your access to and use of In-Game Content is subject to the license terms and restriction\s set forth in this Agreement, and we may revoke your license to such In-Game Content at any time consistent with this Agreement. Additional restrictions may apply to your use of In-Game Content, including any restrictions related to the functionality of the Service or that may be communicated to you separately via the Service. To the fullest extent allowed by applicable law, we may in our sole discretion and without notice modify, substitute, replace, suspend, cancel, or eliminate any In-Game Content, including your ability to access or use In-Game Content.
c. License Keys. We may offer for purchase or otherwise make available unique keys that you can use to access the Game through a Platform (a “License Key”). License Keys are personal to you, and may not be transferred or sold. If we reasonably believe that you have transferred or sold a License Key, engaged in fraud, or otherwise violated this Agreement, we may disable a License Key, or otherwise revoke your rights to use the Game in connection with a License Key. License Keys are not redeemable for money or anything with monetary value.
d. Limited License. Subject to your compliance with this Agreement and any system requirements, AEXLAB grants to you a limited, non-exclusive, non-transferable license, with no right to sublicense, (i) to access and view the Materials (including any In-Game Content you have purchased or otherwise obtained access to in accordance with this Agreement); (ii) if you have a valid License Key to use the Game, or you have purchased the Game through a Platform, or you have otherwise been granted access to the Game by AEXLAB, to download and install the Game on a computer you own or control; in each case of (i) and (ii) solely in connection with your permitted use of the Service and solely for your personal use. Except as expressly permitted in this Agreement, you may not: (w) copy, modify, or create derivative works based on the Service or any Materials; (x) distribute, transfer, sublicense, lease, lend, or rent the Service to any third party; (y) reverse engineer, decompile, or disassemble the Service; or (z) make the functionality of the Service available to multiple users through any means. AEXLAB reserves all rights in and to the Service, including the Game and Materials, not expressly granted to you under this Agreement. The Service is licensed, not sold, for your use. Your license confers no title or ownership in the Service and should not be construed as a sale of any rights in the Service. This Agreement will also apply to updates you may obtain for the Service, provided that such update may be accompanied by additional terms.
e. Streaming. We welcome and encourage you to stream your experiences with our Game provided you: (i) limit such streaming to non-commercial purposes; (ii) do not charge a fee for viewing or access to your streamed content; (iii) maintain your stream within the “T” guidelines of the ESRB (e.g., no swearing or nudity) or similar rating boards; (iv) do not host competitions without our express written consent, which may be subject to further requirements; and (v) clearly indicate when your stream is being sponsored by including the pertinent text in your stream: “Sponsored by _______ (inserting your sponsor’s name)”.
f. Ownership. All title, ownership rights, and intellectual property rights in and to the Service are owned by AEXLAB, affiliates of AEXLAB, or AEXLAB'S licensors. The Service is protected by the copyright laws of the United States of America, international copyright treaties, conventions, and other laws. The Service may contain certain licensed materials, and AEXLAB’s licensors may protect their rights in the event of any violation of this Agreement. Notwithstanding anything to the contrary, you acknowledge and agree that you shall have no ownership or other property interest in any account stored or hosted on an AEXLAB system, and you further acknowledge and agree that all rights in and to these accounts are and will forever be owned by and inure to the benefit of AEXLAB. AEXLAB may suspend, terminate, modify or delete any of these accounts at any time for any reason or no reason, with or without notice to you.
5. GENERAL PROHIBITIONS AND CONDITIONS TO GRANT OF LICENSE. The licenses granted to you in this Agreement are subject to the limitations outlined in this Section. Any use of the Service in violation of these limitations will result in an immediate termination of your license and continued use of the Service and will be considered an infringement of AEXLAB’s copyrights and other rights in and to the Service. You agree that you will not do, or allow, any of the following:
a. use the Service for commercial purposes (such as virtual reality arcades) without AEXLAB’s prior consent, or sell, rent, lease, license, distribute, or otherwise transfer the Service;
b. make copies of the Service or Materials, in whole or in part, and, without limiting the foregoing, copy Service or Materials onto a hard drive or other storage device unless the Service or Materials itself makes a copy during installation, or unless you are downloading the Service or Materials from an authorized Platform or AEXLAB online retailer;
c. use the Service in a network, multi-user arrangement, or remote access arrangement, including any online use except as included in the Service’s functionality;
d. reverse engineer, derive source code, modify, decompile, disassemble, or create derivative works of the software and other proprietary technology in the Service, in whole or in part;
e. create, develop, modify, distribute, or use any unauthorized software to gain advantages in any offline, online, or multiplayer game modes of the Game;
f. remove or bypass any measure that prevents misuse of the Service, or remove, disable, or circumvent any proprietary notices or labels contained on or within the Service;
g. forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Service or Materials to send altered, deceptive, or false source-identifying information;
h. collect or store any personally identifiable information from the Service from other users of the Service without their express permission, or otherwise invade the privacy or violate or infringe any right of any person or entity, including, without limitation, any intellectual property right;
i. violate any applicable law or regulation;
j. engage in any conduct that we or our licensors deem objectionable (i.e., cheating), violent, or discriminatory, or that may disrupt another user’s enjoyment of the Service, including by harassing other users (i.e., “trolling”);
k. transmit any user generated content that we deem to be disruptive, unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, hateful, or racially, sexually, ethnically, or otherwise objectionable;
l. impersonate any person or entity, including but not limited to AEXLAB;
m. disrupt normal Service functionality, or otherwise act in a manner that negatively affects other participants and/or the overall Service experience;
n. post or transmit any unsolicited advertising, promotional materials, or any other forms of solicitation;
o. encourage or enable any other individual to do any of the foregoing.
6. PAYMENTS. When you purchase access to our Game through a Platform, or a License Key, or In-Game Content (each, a “Transaction”), you expressly authorize the Platforms (or the Platforms’ third-party payment processors) to charge you for such Transaction. They may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card, and your email and postal addresses for billing and notification (such information, “Payment Information”). You acknowledge and agree that the Platforms’ terms and conditions may also apply to your Transaction. When you initiate a Transaction, you authorize the Platforms to provide your Payment Information to third parties so they can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction. SUBJECT TO THE REFUND POLICY OF THE RELEVANT PLATFORM, YOUR PURCHASE IS FINAL AND YOU WILL NOT BE ABLE TO CANCEL THE PURCHASE AND/OR RECEIVE A REFUND OF YOUR PURCHASE AT ANY TIME. But if something unexpected happens in the course of completing a Transaction, the Platforms reserve the right to cancel your Transaction for any reason and, if they cancel your Transaction, they’ll refund any payment you have already remitted to them for such Transaction.
7. BETAS. From time to time, we may offer a beta version of our Service (“Betas”). Betas are works-in-progress, are not guaranteed to work properly, and may cause malfunctions or other issues with your computer or other device or system. When you use a Beta, you acknowledge and agree to the following additional terms: (a) AEXLAB may automatically delete or modify any software, data, Materials, or other materials or information related to the Beta, including those stored on your computer, for any reason at any time; (b) AEXLAB may discontinue or terminate your access to a Beta at any time, which would render your Beta unplayable or unable to function properly; (c) if AEXLAB discontinues or terminates a Beta, you will delete any local instance of the Beta on your computer and all Materials, data, materials and other information you received from AEXLAB in connection with the Beta; (d) you will have no rights to any compensation based on your participation in a Beta; and (e) your participation in a Beta does not entitle you to receive access to the full commercial version of the Game or other portion of the Service, and you may be required to separately purchase the full commercial version of the Game.
8. LINKS TO THIRD PARTY WEBSITES OR RESOURCES. The Service may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products, or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
9. TERMINATION.
a. Voluntary Termination by You. You may delete your Account or stop using the Service at any time by permanently deleting any installation of the Game and destroying all copies of the Game in your possession or control. This action may not be reversible, and you may lose all, or some portion of, the data associated with your Account. Termination of your Account will not relieve you of any obligation that may have arisen prior to such termination, including the obligation to pay Fees.
b. Termination by Company. Without prejudice to any other rights of AEXLAB, this Agreement will terminate automatically if you fail to comply with any of its terms and conditions and we reserve the right to terminate this Agreement and your access to all or any part of the Service at any time and for any reason without prior notice or liability. Causes for such termination include where: (i) we believe in our sole discretion that you have violated these Terms or have otherwise engaged in any activities that may harm or damage the reputation, rights, or property of the Service, its users, or any other person, (ii) we believe in our sole discretion that you have violated applicable laws, regulations, or third party rights, or participated in fraudulent or illegal activities, (iii) we believe in our sole discretion that such action is reasonably necessary to protect the personal safety or property of the Company, its users, or third parties, (iv) you request that we cancel or terminate your Account; (v) we receive a request or order from law enforcement, a judicial body, or other government agency; (vi) provision of the Service to you is or may become unlawful; or (vii) unexpected technical or security issues or problems occur. Any such termination or suspension will be made by us in our sole discretion and we will not be responsible to you or any third party for any damages that may result or arise out of such termination or suspension of your Account or access to the Service. In the event of termination, you must destroy all copies of the Game and all of its component parts on your computer system.
c. Effect of Termination. Upon termination of your Account, you may lose all access to the Service or any portions thereof, including, but not limited to, your Account and data. Additionally, after a period of time, we may in our discretion delete information and data stored in or as a part of your Account. The following provisions will survive termination of this Agreement: Sections 3-6, 9, 11-15.
10. COPYRIGHT NOTICE. For residents in North America: if you believe that any user generated content or any other content appearing in the Service has been copied in a way that constitutes copyright infringement, please forward the following information to the copyright agent named below. Your copyright infringement notification must comply with the digital millennium copyright act ("DMCA"). You are encouraged to review 17 U.S.C. § 512(c)(3) or consult with an attorney prior to sending a notice hereunder. To file a copyright infringement notice, you will need to send a written communication that includes the following to the address listed below: (a) your name, address, telephone number, and email address; (b) a description of the copyrighted work that you claim has been infringed; (c) the exact URL or a description of where the alleged infringing material is located; (d) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (e) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and (f) a statement by you, under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
AEXLAB Inc.
44 W. Flagler Street, Suite 600
Miami, Florida 33131
Attn: Legal Department
E-mail: legal@aexlab.com
Please note that the DMCA provides that you may be liable for damages (including costs and attorney fees) if you knowingly misrepresent that material or activity is infringing. Please also note that the information provided in your copyright infringement notice may be provided to the person responsible for the allegedly infringing material. It is our policy, in appropriate circumstances and at our discretion, to disable or terminate the Account or access of users who repeatedly infringe or are repeatedly charged with infringing the copyrights or other intellectual property rights of others.
11. INDEMNITY. You agree, to the fullest extent permissible under applicable laws, to indemnify, defend, and hold harmless AEXLAB, and its parent, successors, affiliated companies, affiliates, contractors, officers, directors, employees, agents, and its third-party suppliers, licensors, and partners (the “AEXLAB Parties") from and against all losses, damages, liabilities, demands, judgments, settlements, costs and expenses of any kind (including legal fees and expenses), from any claim or demand arising out of or relating to: (i) your access to, use, or misuse of the Service or Materials; (ii) your breach or alleged breach of this Agreement, or any violation of this Agreement; (iii) your failure to comply with applicable laws; (v) the infringement by you or any third-party of any intellectual property, privacy, or other right of any person or entity; or (vi) your breach or alleged breach of any interaction, agreement, right, or policy between you and any other users. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any such matter without the prior written consent of AEXLAB. We will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it. This provision will survive this Agreement and your use of the Service.
12. DISCLAIMER OF WARRANTIES. THE SERVICE AND MATERIALS (WHETHER OWNED OR LICENSED), AND ANY USER GENERATED CONTENT THAT MAY BE MADE AVAILABLE TO YOU IN CONJUNCTION WITH OR THROUGH THE SERVICE, ARE PROVIDED “AS IS”, “AS AVAILABLE”, AND "WITH ALL FAULTS" BASIS WITHOUT A WARRANTY OF ANY KIND WHATSOEVER. WITHOUT LIMITING THE FOREGOING, AND TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THE AEXLAB PARTIES EXPLICITLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER STATUTORY, EXPRESS, OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WE MAKE NO WARRANTY THAT THE SERVICE OR MATERIALS WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. WE MAKE NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR RELIABILITY OF ANY SERVICE OR MATERIALS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ANY AEXLAB PARTIES OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. Our Service, including our Game, may require the use of third-party hardware, including headsets or sensors (e.g., Oculus Rift or HTC Vive hardware products) or third-party software, such as Platforms (“Third-Party Materials”). You acknowledge and agree that AEXLAB is not responsible for Third-Party Materials, including any damages or malfunctions that arise from your use of our Service in connection with such Third-Party Materials. You acknowledge and agree that you are solely responsible for reading any warnings or instructions provided with Third-Party Materials, and for ensuring that your use of our Service, including our Game, complies with such instructions.
13. LIMITATION OF LIABILITY.
a. IN NO EVENT WILL AEXLAB OR THE AEXLAB PARTIES, OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICE OR MATERIALS, BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICE OR MATERIALS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY WHATSOEVER, AND WHETHER OR NOT AEXLAB OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. AEXLAB AND THE AEXLAB PARTIES ASSUME NO LIABILITY OR RESPONSIBILITY WHATSOEVER FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF MATERIALS; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE OR MATERIALS; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY MATERIALS OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY MATERIALS OR USER GENERATED CONTENT THERWISE MADE AVAILABLE THROUGH THE SERVICE; OR (VII) USER GENERATED CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
b. USE OF VIRTUAL REALITY SOFTWARE, INCLUDING OUR GAME, AND ANY THIRD-PARTY MATERIALS, MAY AFFECT HEART AND BREATHING RATE, CAUSE UNINTENDED SIDE EFFECTS SUCH AS MOTION SICKNESS OR DISORIENTATION, OR AGGRAVATE PRE-EXISTING MEDICAL CONDITIONS. YOU EXPRESSLY WAIVE AEXLAB’S AND THE AEXLAB PARTIES’ LIABILITY FOR RISKS INHERENT IN THE USE OF VIRTUAL REALITY SOFTWARE AND HARDWARE, YOU ASSUME ALL RISKS IN THE USE OF VIRTUAL REALITY SOFTWARE AND HARDWARE, AND AEXLAB AND THE AEXLAB PARTIES WILL NOT BE LIABLE TO YOU FOR ANY CAUSE OF ACTION OR UNDER ANY THEORY OF LIABILITY ARISING FROM SUCH RISKS.
c. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF AEXALB OR THE AEXLAB PARTIES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICE OR MATERIALS EXCEED THE AMOUNTS YOU HAVE PAID TO AEXLAB FOR USE OF THE SERVICE OR MATERIALS IN THE 12 MONTH PERIOD PRIOR TO THE EVENTS OR CIRCUMSTANCES GIVING RISE TO ANY CLAIMS OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO AEXLAB, AS APPLICABLE.
d. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THIS AGREEMENT BETWEEN YOU AND AEXLAB.
14. GOVERNING LAW AND FORUM CHOICE. This Agreement and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of Florida, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 15 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that you and AEXLAB are not required to arbitrate will be the state and federal courts located in Miami-Dade County, Florida, and you and AEXLAB each waive any objection to jurisdiction and venue in such courts and irrevocably consent and submit to the personal and exclusive jurisdiction of such courts for the purpose of litigating any such non-arbitrable action.
15. DISPUTE RESOLUTION.
a. Initial Dispute Resolution. AEXLAB’s customer support department is available at ___@aexlab.com to address any concerns you may have regarding the Service. Most concerns are quickly resolved in this manner. The parties will use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which will be a precondition to either party initiating a lawsuit or arbitration.
b. Mandatory Arbitration of Disputes. 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, we each agree that any dispute, claim, or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof or the use of the Service or Material (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative, or consolidated action or proceeding. This arbitration provision is made pursuant to a transaction involving interstate commerce, and the federal arbitration act (the "FAA"). You and AEXLAB agree that the FAA governs the interpretation and enforcement of this Agreement. 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. This arbitration provision will survive termination of this Agreement.
c. Location of Arbitration. Arbitration will be initiated in Miami, Florida, and you and AEXLAB agree to submit to the personal jurisdiction of any federal or state court in Miami-Dade County, Florida, 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.
d. Opt-out: You have the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by email at optout@aexlab.com within thirty (30) days following the date you first agree to this Agreement.
e. Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Agreement. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org. In a dispute involving $10,000 or less, any hearing will be telephonic unless the arbitrator finds good cause to hold an in-person hearing instead. To the extent the forum provided by AAA is unavailable, the Company and you agree to select a mutually agreeable alternative dispute resolution service and that such alternative dispute resolution service will apply the AAA Rules. Any arbitration hearings will take place in Miami, Florida, unless we both agree to a different location. The parties agree that the arbitrator will have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability, and scope of this arbitration agreement. The arbitrator may award the same damages to you individually as a court could. The arbitrator may award declaratory or injunctive relief to you only individually, and only to the extent required to satisfy your individual claim. The arbitrator has the power to award attorney’s fees and costs to the prevailing party, which will be part of the arbitration award. The arbitrator’s decision will be written and binding on the parties.
f. Class Action Waiver. THE PARTIES AGREE THAT ANY ARBITRATION WILL 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 AEXLAB 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.
g. 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 the state or federal courts in Miami-Dade County, Florida 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 Service under this Agreement. Either party may also seek relief in a small claims court for disputes or claims within the scope of those court's jurisdiction.
h. Effect of Amendments. Notwithstanding the provisions of Section 2 “Changes to Agreement” above, if AEXLAB changes any of the terms of this Section 15 “Dispute Resolution” after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you may reject any such change by sending us written notice (including by email to ___@aexlab.com) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of AEXLAB’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and AEXLAB in accordance with the terms of this Section 15 “Dispute Resolution” as of the date you first accepted these Agreement (or accepted any subsequent changes to these Agreement). Additionally, the parties agree that if we make any amendment to this Agreement, that amendment will not apply to any Dispute that was initiated prior to the effective date of the amendment or of which the parties had actual notice before the effective date of the amendment.
i. Severability. With the exception of any of the provisions in Section 15(f) of these Terms ("Class Action Waiver"), if an arbitrator or court of competent jurisdiction decides that any part of this Agreement is invalid or unenforceable, the other parts of this Agreement will still apply.
16. GENERAL TERMS.
a. Entire Agreement. This Agreement and any other document referred to in this Agreement constitute the entire agreement between AEXLAB and you regarding the Service and Materials. This Agreement supersede and replace any and all prior oral or written understandings or agreements between AEXLAB and you regarding the Service and Materials.
b. Severability. To the extent the applicable law permits, the provisions of this Agreement will be interpreted to the maximum extent possible. If any of the provisions in this Agreement are held unenforceable, the remaining provisions will not be affected.
c. No assignment. You may not assign, transfer, or delegate this Agreement or your rights and obligations hereunder without AEXLAB’s prior written consent.
d. No Waiver. No waiver by AEXLAB of any right, term, or condition set out in this Agreement will be deemed a further or continuing waiver of such right, term, or condition or a waiver of any other term or condition, and any delay or failure of AEXLAB to assert a right or provision under this Agreement will not constitute a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized officer of AEXLAB. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
e. Contact Information. If you have any questions about this Agreement or the Service, please contact AEXLAB at legal@aexlab.com or by mail at AEXLAB Inc., 44 W. Flagler Street, Suite 600, Miami, Florida 33130.