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Viacom International, Inc. a Delaware corporation ("Viacom," "we," or "us"), is proud to offer the VR Experience (such VR Experience is the "Experience") for download. Please read these End User License Agreement (the "EULA") carefully because they govern your use of the Experience.
Agreement to EULA
By using the Experience, you agree to be bound by these EULA and the Privacy Policy (available at http://www.mtv.com/legal/privacy) that is incorporated by reference into these EULA. If you don’t agree to be bound by these EULA, do not use the Experience. If you are accessing or using the Experience or Content on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these EULA. In that case, "you" and "your" will refer to that company or other legal entity. Otherwise, "you" and "your" will refer to you, individually.
Grant of License
Subject to these EULA, Viacom grants you, a nonexclusive, non-transferable, non-sublicensable, limited right and license to use one copy of the Experience for your personal non-commercial use of the Experience. The term of your license begins on the date that you install or otherwise use the Experience and ends on the earlier date of either your disposal of the Experience or Viacom’s termination of this Agreement. Your license terminates immediately if you attempt to circumvent any technical protection measures used in connection with the Experience or if you violate these EULA. The Experience is being licensed to you and you hereby acknowledge that no title or ownership in the Experience is being transferred or assigned and these EULA should not be construed as a sale of any rights in the Experience. All rights not specifically granted under these EULA are reserved by Viacom.
Changes to EULA, Experience, and Content
Viacom may modify the EULA at any time, in our sole discretion. If we do so, we will let you know either by posting the modified EULA wherever the Experience may be downloaded or through other communications. Please make sure you review the modified EULA because if you continue to use the Experience after we have posted modified EULA, you are indicating to us that you agree to be bound by the modified EULA. If you don’t agree to be bound by the modified EULA, then you may not use the Experience anymore. Because the Experience may evolve over time, we may change or discontinue all or any part of the Experience, at any time and without notice, at our sole discretion.
Personal and Non-Commercial Use Limitation
Except as otherwise specified below, Viacom is providing the Experience to you for your personal and non-commercial use. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, software, products, and/or services obtained from the Experience.
Who May Use the Experience; Eligibility
The Experience is only available to individuals aged 13 years or older. If you are 13 years old but younger than 18 years old, you should not use the Experience without first reviewing the EULA with your parent or guardian and ensuring that you and your parent or guardian understand and agree to the EULA. Additionally, if you are using any third party equipment to access the Experience, you must comply with all age restrictions for such equipment.
Health and Safety Precautions
The below should be reviewed before use of the Experience. If the Experience will be used by indivudals under the age of 18, this information should be read and explained to them by an adult. Failing to review the below health and safety precautions may cause damage to property, injury, or death. These health and safety precautions are not intended to be an exhaustive list, and use of the Experience may involve other health and/or safety risks not contained herein. Viacom is not liable for any damage to property, injury, or death that may occur as the result of your failure to review the health and safety precautions or as a result of the interactions between you or your family members and people or objects in or around the area during your use of the Experience.
Children
Adults should monitor children (age 13 and older) who are using or have used the Experience for any of the symptoms described below, and should limit the time children spend using the Experience and ensure that they take breaks during use. Prolonged use should be avoided, as it could negatively impact hand-eye coordination, balance, and multi-tasking ability. Adults should monitor children closely during and after use of the Experience for any decrease in these abilities.
Epileptic Seizure Warning
Please note that certain people are susceptible to epileptic seizures or loss of consciousness when exposed to certain flashing lights or light patterns, even if they have never experienced epileptic symptoms or been previously diagnosed with epilepsy. Such people may have a seizure while watching certain images on screens, including virtual reality headsets, or playing certain video Experiences, including the Experience. If you or anyone in your family has ever had symptoms related to epilepsy (seizures or loss of consciousness in particular) when exposed to flashing lights, you should consult your doctor prior to playing the Experience. Parents and guardians should watch their children while playing the Experience. Stop playing the Experience and consult a doctor if you or your child has any of the following symptoms:
Convulsions; Eye or muscle twitching; Loss of consciousness or awareness; Altered vision; Involuntary movements; or Disorientation.
Viacom is not liable for any death, injury, or health complications resulting from any epileptic symptoms or conditions which may occur during or as a result of your use of the Experience. To reduce the likelihood of a seizure or epileptic symptoms do not play the Experience when tired or need sleep and take ten or fifteen minute breaks every thirty minutes while playing the Experience.
Motion Sickness
Playing experience (especially virtual reality experiences), including the Experience, may cause motion sickness in some users. If you or your child feels dizzy or nauseous when playing the Experience, stop playing and rest. Do not drive, operate heavy machinery or engage in other demanding or strenuous activity until you feel better. To limit the risk of motion sickness while playing the Experience, do not use the Experience when you are tired, need sleep, are under the influence of alcohol or drugs, are hung-over, have digestive problems, are under emotional stress or anxiety, or when suffering from cold, flu, headaches, migraines, or earaches or other health issues which may increase your susceptibility to adverse symptoms.
Repetitive Motion Injuries and Eyestrain
Playing video experiences, including the Experience, can make your muscles, joints, skin or eyes hurt. To avoid problems such as tendinitis, carpal tunnel syndrome, skin irritation or eyestrain:
Avoid excessive play;
Adults should monitor children for appropriate use;
Take a 10 to 15 minute break every 30 minutes while playing the Experience;
If your hands, wrists, arms, eyes or other parts of your body become tired or sore while playing, or if you feel symptoms such as tingling, numbness, burning or stiffness, stop and rest for several hours before playing again; and
If you continue to have any of the above symptoms or other discomfort during or after playing the Experience, stop playing and consult a doctor.
Play Area Precautions
Give yourself plenty of room to play the Experience. Always be aware of your surroundings when playing the Experience. While playing the Experience you may be moving around the surrounding area and using your hands to control the Experience. Make sure the area is clear of furniture, objects and other people that could be bumped into during the Experience. Please ensure that you are not near other people, stairs, balconies, windows, walls furniture or other objects that may pose a danger to you or could be damaged or injured during or immediately after using the Experience. All objects that may pose tripping hazards, could cause injury, or could be damaged as the result of your contact with them while using the Experience should be removed from the area prior to your or your family members starting the Experience. A minimum six-feet-by-six-feet unobstructed area is recommended for safe enjoyment of the Experience. Never handle sharp or dangerous objects while using the Experience.
Due to the immersive nature of the Experience, sound volumes should be kept at low enough levels that you are able to maintain awareness of your surroundings while using the Experience and so as not to damage your hearing. You should not use the Experience if your awareness of your surroundings is impaired by lack of sleep, drugs, alcohol, the effects of a hang-over, stress, anxiety or when suffering from a cold, flu, headaches, migraines or other illnesses.
Content and Content Rights
For purposes of the EULA, "Content" means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are included in the Experience.
Content Ownership, Responsibility and Removal
Viacom and its and its licensors exclusively own all right, title and interest in and to the Experience and Content, including all associated intellectual property rights. You acknowledge that the Experience and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Experience or Content.
General Prohibitions and Viacom’s Enforcement Rights
You agree not to do any of the following:
Use, display, mirror or frame the Experience or Content or any individual element within the Experience, Against Viacom’s name, any Viacom trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Viacom’s express written consent;
Access, tamper with, or use non-public areas of the Experience, Viacom’s computer systems, or the technical delivery systems of Viacom’s providers;
Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Viacom or any of Viacom’s providers or any other third party (including another user) to protect the Experience or Content;
Attempt to access or search the Experience or Content or download Content from the Experience through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Viacom or other generally available third-party web browsers;
Use any meta tags or other hidden text or metadata utilizing a Viacom trademark, logo URL or product name without Viacom’s express written consent;
Use the Experience or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these EULA;
Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Experience or Content;
Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Experience;
Collect or store any personally identifiable information from the Experience from other users of the Experience without their express permission;
Impersonate or misrepresent your affiliation with any person or entity;
Violate any applicable law or regulation; or
Encourage or enable any other individual to do any of the foregoing.
Although we’re not obligated to monitor access to or use of the Experience, we have the right to do so for the purpose of operating and updating the Experience and/or Content, to ensure compliance with these EULA, and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to the Experience, at any time and without notice, including, but not limited to, if we, at our sole discretion. We have the right to investigate violations of these EULA or conduct that affects the Experience and/or Content including, consulting and cooperating with law enforcement authorities to prosecute users who violate the law.
Termination
We may terminate your access to and use of the Experience, at our sole discretion, at any time and without notice to you. Upon any termination, discontinuation or cancellation of the Experience, provisions relating to Content Ownership, Termination, Warranty Disclaimers, Indemnity, Limitations of Liability, and Dispute Resolution shall survive such termination.
Warranty Disclaimers
THE EXPERIENCE AND CONTENT ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Experience or Content 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 Content.
Indemnity
You will indemnify and hold harmless Viacom and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Experience or Content or (ii) your violation of these EULA.
Limitation of Liability
NEITHER VIACOM NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE EXPERIENCE OR CONTENT WILL BE LIABLE FOR ANY PERSONAL INJURY, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE EULA OR FROM THE USE OF OR INABILITY TO USE THE EXPERIENCE OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT VIACOM 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.
IN NO EVENT WILL VIACOM’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE EULA OR FROM THE USE OF OR INABILITY TO USE THE EXPERIENCE OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO VIACOM FOR USE OF THE EXPERIENCE OR CONTENT OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO VIACOM, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN VIACOM AND YOU.
Agreement to Arbitrate
You and Viacom agree to submit to individual arbitration the resolution of any and all Claims (as defined below) by or between you and/or Viacom, except that you and Viacom agree that the following will not be subject to the mandatory arbitration provisions in this Section: (A) any Claim filed by you or Viacom with respect to any violation, enforcement or validity of patent, trademark, trade dress, service mark, copyright and/or trade secret rights of you, Viacom, or any third party and/or (B) you or Viacom may seek a preliminary injunction, restraining order or other provisional equitable relief in any court as provided herein in connection with any Claim whereby you or Viacom, as applicable, may suffer immediate and irreparable harm for which money damages may be inadequate and impossible to calculate (including, but not limited to, a Claim under subsection (A) above, where such Claim under this Subsection (B) will not be subject to the informal dispute resolution procedures described in the paragraph below; provided, however, that, subsequent to obtaining such preliminary injunction, restraining order or other provisional equitable relief, the Claim will then be submitted to arbitration in accordance with this Section. You and Viacom agree that this Agreement affects interstate commerce, and that the enforceability of this Section will be governed by, construed, and enforced, both procedurally and substantively, by the Federal Arbitration Act, 9 U.S.C. sections 1–9 ("FAA"). Arbitration is the referral of a dispute to one or more impartial persons for a final and binding determination. There is no judge or jury in arbitration, discovery is more limited than in court, there are no class or representative proceedings, and court review of an arbitration decision is limited. An arbitrator must follow this Agreement and can award on an individual basis the same damages and relief as a court (including, but not limited to, injunctive and declaratory relief, statutory damages, and attorneys' fees). "Claim(s)" means any dispute, claim or controversy by or between you and/or Viacom relating to this Agreement, the Experience or the Content, as may be, in each case, modified from time-to-time, and the subject matter hereof, including, but not limited to, any contract, tort, statutory, or equity claims.
Informal Dispute Resolution. Except with respect to Claims described in subsection (B) of the preceding paragraph, before either you or Viacom pursue or participate in any Claim against the other party in arbitration or court proceedings, you or Viacom must notify the other party of the Claim in writing at least 60 days in advance of initiating the arbitration or court proceeding in order to provide a reasonable opportunity to resolve the Claim.
You may send a written notice of your Claim to Viacom at 1515 Broadway, New York, New York 10036, Attention: Viacom Inc. General Counsel. Viacom may send written or electronic notice of its Claim to your email address, Viacom account or any physical or other address Viacom has for you. The notice must describe the Claim in reasonable detail and set forth the relief requested so that the other party has an opportunity to adequately address the Claim. Except with respect to Claims described in subsection (B) of the Section XIX above, you and Viacom agree to negotiate in good faith with each other to try to informally resolve the Claim and, if you and Viacom do not reach an informal resolution of the Claim within 60 days, then the Claim may be submitted to binding arbitration as set forth in the Section XIX of this Agreement.
Arbitration Proceedings and Costs.
Any arbitration will be administered by the American Arbitration Association ("AAA") pursuant to its Consumer Arbitration Rules (the "AAA Rules"), as modified by this Agreement. The AAA Rules, and other information about the AAA, are available at the AAA's website at www.adr.org. A form for initiating arbitration proceedings is available on the AAA's website (see Demand for Arbitration at https://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015820 and, for arbitrations in California, https://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822, but contact the AAA if you have issues accessing these links) and arbitration proceedings shall be initiated in the location described in Section XXIII below. As required by the AAA Rules, if you initiate the arbitration proceedings, you must send the original copy of the completed form to Viacom, which should be sent to Viacom at the following address: 1515 Broadway, New York, New York 10036, Attention: Viacom Inc. General Counsel. If your Claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely based on documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing under the AAA Rules. In all cases, you and Viacom shall exchange documents and other information that you or Viacom intend to use in the arbitration.
Upon filing of an arbitration demand for Claims up to $75,000, Viacom will reimburse you for all necessary filing, administration and arbitrator fees paid by you to the AAA or, if you wish Viacom to pay such fees directly to the AAA, you must request payment of such fees by Viacom by mail to the AAA along with your form initiating arbitration and Viacom will make arrangements to pay such fees directly to the AAA. In the event the arbitrator determines that the Claim(s) you assert in the arbitration are frivolous or vexatious, you agree to reimburse Viacom for all fees associated with the arbitration paid by Viacom on your behalf. You agree that Viacom shall have no obligation to pay any other fees except as determined by the arbitrator.
For Claims that total more than $75,000, the AAA Rules will govern payment of filing, administration and arbitrator fees to the maximum extent permitted by law. The decision of the arbitrator will be binding and conclusive on all parties, and judgment to enforce the decision may be entered by any court of competent jurisdiction.
UNLESS YOU SUBMIT A VALID ARBITRATION/CLASS ACTION WAIVER OPT-OUT NOTICE (AS DESCRIBED BELOW), YOU AND VIACOM AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WHETHER IN ARBITRATION OR IN COURT WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION.
Y
ou and Viacom expressly agree that any Claim is personal to you and Viacom, shall only be resolved by an individual arbitration (or individual court proceedings with respect to Claims excluded from mandatory arbitration as described in Section XIX of this Agreement), and shall in no event be brought as a class arbitration, a class action, or any other representative proceeding. The arbitrator (or court if the Claim is excluded from mandatory arbitration as described in the Section XIX of this Agreement) may only conduct an individual arbitration (or court action if the Claim is excluded from mandatory arbitration as described in the Section XIX of this Agreement), and may not consolidate more than one person's claims and may not preside over any form of representative or class proceeding. If a court or arbitrator determines that this class action waiver is unenforceable in an action between you and Viacom, then this agreement to arbitrate will be unenforceable. Neither you nor Viacom consent to class arbitration.
Right to Opt Out of Mandatory Arbitration and Class Action Waiver. IF YOU DO NOT WISH TO BE BOUND BY THE MANDATORY ARBITRATION AND CLASS ACTION WAIVER PROVISIONS IN THIS AGREEMENT, YOU MUST NOTIFY VIACOM IN WRITING (THE "Arbitration/Class Action Waiver Opt-Out Notice"), WHERE THE ARBITRATION/CLASS ACTION WAIVER OPT-OUT NOTICE MEETS ALL OF THE FOLLOWING REQUIREMENTS:
Sent by first class mail, postage prepaid, certified and return receipt requested or sent by overnight courier service (such as Federal Express) to Viacom Inc., Attention: Viacom Legal Department, Records Management, 1515 Broadway, 51st Floor, New York, NY 10036.
Postmarked (if sent by first class mail) or deposited with the overnight courier service no later than (A), 45 days after the date you accept this Agreement for the first time, unless a longer period is required by applicable law.
Includes your first and last name, address, phone number, email address. We shall use the foregoing information included in the Arbitration/Class Action Waiver Opt-Out Notice to record, process, maintain and administer your opt-out of the mandatory arbitration and class action waiver provisions and not for marketing purposes.
Includes a statement that you do not agree to the mandatory arbitration and class action waiver.
If the Arbitration/Class Action Waiver Opt-Out Notice meets all of the above requirements, you will be deemed to have opted out of the mandatory arbitration and class action waiver provisions in in this Agreement. Note that a valid Arbitration/Class Action Waiver Opt-Out Notice applies only to the individual identified in such notice as opting out.
GOVERNING LAW, ARBITRATION LOCATION, JURISDICTION, VENUE AND JURY TRIAL WAIVER.
With the exception of the provision above that the enforceability of the Arbitration EULA are governed both procedurally and substantively by the FAA, this Agreement and your use of the Experience is otherwise governed by, construed and enforced in accordance with the laws of the State of New York (without regard to that state's conflict of laws rules).
You or Viacom shall initiate arbitration in the United States county or territory in which you reside or, if you do not reside in the United States or one of its territories, in the non-United States country in which you reside; provided, however, that (a) Viacom may request to transfer the arbitration to New York County, New York if it agrees to pay any additional fees or costs you incur as a result of the change in location as such additional fees or costs are determined by the arbitrator and to the maximum extent permitted by law and, upon such request, (b)(i) if you agree to such request, the arbitration shall be transferred to New York County, New York or (ii) if you do not agree to such request, Viacom shall have right to request that the arbitrator determine the location in which the arbitration shall be held. You and Viacom agree that any Claim that is allowed to proceed in court as set forth in Section XIX of this Agreement (including, but not limited to, as a result of your submission of a valid Arbitration/Class Action Waiver Opt-Out Notice), or otherwise proceeds in court in the event the agreement to arbitrate above is found not to apply to you or a particular Claim as a result of a decision by the arbitrator or a court order, is subject to exclusive jurisdiction and venue in the State or Federal Courts situated in the Borough of Manhattan, New York City, State of New York.
To the extent it may be applicable, you and Viacom agree to opt out from and expressly exclude any applicability of the Uniform Computer Information Transactions Act. If any Claim proceeds in court rather than in arbitration, YOU AND VIACOM WAIVE ANY RIGHT TO A JURY TRIAL.
General Terms
This EULA constitute the entire and exclusive understanding and agreement between Viacom and you regarding the Experience and the Content, and this EULA supersede and replace any and all prior oral or written understandings or agreements between Viacom and you regarding the Experience and Content. If any provision of the EULA is held invalid or unenforceable (either by an arbitrator appointed pursuant to the agreement to arbitrate terms above or by court of competent jurisdiction in accordance with the EULA), that provision will be enforced to the maximum extent permissible and the other provisions of these EULA will remain in full force and effect. You may not assign or transfer the EULA, by operation of law or otherwise, without Viacom’s prior written consent. Any attempt by you to assign or transfer the EULA, without such consent, will be null and void. Viacom may freely assign or transfer the EULA without restriction. Subject to the foregoing, the EULA will bind and inure to the benefit of the parties, their successors and permitted assigns.
Viacom’s failure to enforce any right or provision of the EULA will not be considered 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 representative of Viacom. Except as expressly set forth in the EULA, the exercise by either party of any of its remedies under the EULA will be without prejudice to its other remedies under the EULA or otherwise
Agreement to EULA
By using the Experience, you agree to be bound by these EULA and the Privacy Policy (available at http://www.mtv.com/legal/privacy) that is incorporated by reference into these EULA. If you don’t agree to be bound by these EULA, do not use the Experience. If you are accessing or using the Experience or Content on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these EULA. In that case, "you" and "your" will refer to that company or other legal entity. Otherwise, "you" and "your" will refer to you, individually.
Grant of License
Subject to these EULA, Viacom grants you, a nonexclusive, non-transferable, non-sublicensable, limited right and license to use one copy of the Experience for your personal non-commercial use of the Experience. The term of your license begins on the date that you install or otherwise use the Experience and ends on the earlier date of either your disposal of the Experience or Viacom’s termination of this Agreement. Your license terminates immediately if you attempt to circumvent any technical protection measures used in connection with the Experience or if you violate these EULA. The Experience is being licensed to you and you hereby acknowledge that no title or ownership in the Experience is being transferred or assigned and these EULA should not be construed as a sale of any rights in the Experience. All rights not specifically granted under these EULA are reserved by Viacom.
Changes to EULA, Experience, and Content
Viacom may modify the EULA at any time, in our sole discretion. If we do so, we will let you know either by posting the modified EULA wherever the Experience may be downloaded or through other communications. Please make sure you review the modified EULA because if you continue to use the Experience after we have posted modified EULA, you are indicating to us that you agree to be bound by the modified EULA. If you don’t agree to be bound by the modified EULA, then you may not use the Experience anymore. Because the Experience may evolve over time, we may change or discontinue all or any part of the Experience, at any time and without notice, at our sole discretion.
Personal and Non-Commercial Use Limitation
Except as otherwise specified below, Viacom is providing the Experience to you for your personal and non-commercial use. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, software, products, and/or services obtained from the Experience.
Who May Use the Experience; Eligibility
The Experience is only available to individuals aged 13 years or older. If you are 13 years old but younger than 18 years old, you should not use the Experience without first reviewing the EULA with your parent or guardian and ensuring that you and your parent or guardian understand and agree to the EULA. Additionally, if you are using any third party equipment to access the Experience, you must comply with all age restrictions for such equipment.
Health and Safety Precautions
The below should be reviewed before use of the Experience. If the Experience will be used by indivudals under the age of 18, this information should be read and explained to them by an adult. Failing to review the below health and safety precautions may cause damage to property, injury, or death. These health and safety precautions are not intended to be an exhaustive list, and use of the Experience may involve other health and/or safety risks not contained herein. Viacom is not liable for any damage to property, injury, or death that may occur as the result of your failure to review the health and safety precautions or as a result of the interactions between you or your family members and people or objects in or around the area during your use of the Experience.
Children
Adults should monitor children (age 13 and older) who are using or have used the Experience for any of the symptoms described below, and should limit the time children spend using the Experience and ensure that they take breaks during use. Prolonged use should be avoided, as it could negatively impact hand-eye coordination, balance, and multi-tasking ability. Adults should monitor children closely during and after use of the Experience for any decrease in these abilities.
Epileptic Seizure Warning
Please note that certain people are susceptible to epileptic seizures or loss of consciousness when exposed to certain flashing lights or light patterns, even if they have never experienced epileptic symptoms or been previously diagnosed with epilepsy. Such people may have a seizure while watching certain images on screens, including virtual reality headsets, or playing certain video Experiences, including the Experience. If you or anyone in your family has ever had symptoms related to epilepsy (seizures or loss of consciousness in particular) when exposed to flashing lights, you should consult your doctor prior to playing the Experience. Parents and guardians should watch their children while playing the Experience. Stop playing the Experience and consult a doctor if you or your child has any of the following symptoms:
Convulsions; Eye or muscle twitching; Loss of consciousness or awareness; Altered vision; Involuntary movements; or Disorientation.
Viacom is not liable for any death, injury, or health complications resulting from any epileptic symptoms or conditions which may occur during or as a result of your use of the Experience. To reduce the likelihood of a seizure or epileptic symptoms do not play the Experience when tired or need sleep and take ten or fifteen minute breaks every thirty minutes while playing the Experience.
Motion Sickness
Playing experience (especially virtual reality experiences), including the Experience, may cause motion sickness in some users. If you or your child feels dizzy or nauseous when playing the Experience, stop playing and rest. Do not drive, operate heavy machinery or engage in other demanding or strenuous activity until you feel better. To limit the risk of motion sickness while playing the Experience, do not use the Experience when you are tired, need sleep, are under the influence of alcohol or drugs, are hung-over, have digestive problems, are under emotional stress or anxiety, or when suffering from cold, flu, headaches, migraines, or earaches or other health issues which may increase your susceptibility to adverse symptoms.
Repetitive Motion Injuries and Eyestrain
Playing video experiences, including the Experience, can make your muscles, joints, skin or eyes hurt. To avoid problems such as tendinitis, carpal tunnel syndrome, skin irritation or eyestrain:
Avoid excessive play;
Adults should monitor children for appropriate use;
Take a 10 to 15 minute break every 30 minutes while playing the Experience;
If your hands, wrists, arms, eyes or other parts of your body become tired or sore while playing, or if you feel symptoms such as tingling, numbness, burning or stiffness, stop and rest for several hours before playing again; and
If you continue to have any of the above symptoms or other discomfort during or after playing the Experience, stop playing and consult a doctor.
Play Area Precautions
Give yourself plenty of room to play the Experience. Always be aware of your surroundings when playing the Experience. While playing the Experience you may be moving around the surrounding area and using your hands to control the Experience. Make sure the area is clear of furniture, objects and other people that could be bumped into during the Experience. Please ensure that you are not near other people, stairs, balconies, windows, walls furniture or other objects that may pose a danger to you or could be damaged or injured during or immediately after using the Experience. All objects that may pose tripping hazards, could cause injury, or could be damaged as the result of your contact with them while using the Experience should be removed from the area prior to your or your family members starting the Experience. A minimum six-feet-by-six-feet unobstructed area is recommended for safe enjoyment of the Experience. Never handle sharp or dangerous objects while using the Experience.
Due to the immersive nature of the Experience, sound volumes should be kept at low enough levels that you are able to maintain awareness of your surroundings while using the Experience and so as not to damage your hearing. You should not use the Experience if your awareness of your surroundings is impaired by lack of sleep, drugs, alcohol, the effects of a hang-over, stress, anxiety or when suffering from a cold, flu, headaches, migraines or other illnesses.
Content and Content Rights
For purposes of the EULA, "Content" means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are included in the Experience.
Content Ownership, Responsibility and Removal
Viacom and its and its licensors exclusively own all right, title and interest in and to the Experience and Content, including all associated intellectual property rights. You acknowledge that the Experience and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Experience or Content.
General Prohibitions and Viacom’s Enforcement Rights
You agree not to do any of the following:
Use, display, mirror or frame the Experience or Content or any individual element within the Experience, Against Viacom’s name, any Viacom trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Viacom’s express written consent;
Access, tamper with, or use non-public areas of the Experience, Viacom’s computer systems, or the technical delivery systems of Viacom’s providers;
Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Viacom or any of Viacom’s providers or any other third party (including another user) to protect the Experience or Content;
Attempt to access or search the Experience or Content or download Content from the Experience through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Viacom or other generally available third-party web browsers;
Use any meta tags or other hidden text or metadata utilizing a Viacom trademark, logo URL or product name without Viacom’s express written consent;
Use the Experience or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these EULA;
Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Experience or Content;
Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Experience;
Collect or store any personally identifiable information from the Experience from other users of the Experience without their express permission;
Impersonate or misrepresent your affiliation with any person or entity;
Violate any applicable law or regulation; or
Encourage or enable any other individual to do any of the foregoing.
Although we’re not obligated to monitor access to or use of the Experience, we have the right to do so for the purpose of operating and updating the Experience and/or Content, to ensure compliance with these EULA, and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to the Experience, at any time and without notice, including, but not limited to, if we, at our sole discretion. We have the right to investigate violations of these EULA or conduct that affects the Experience and/or Content including, consulting and cooperating with law enforcement authorities to prosecute users who violate the law.
Termination
We may terminate your access to and use of the Experience, at our sole discretion, at any time and without notice to you. Upon any termination, discontinuation or cancellation of the Experience, provisions relating to Content Ownership, Termination, Warranty Disclaimers, Indemnity, Limitations of Liability, and Dispute Resolution shall survive such termination.
Warranty Disclaimers
THE EXPERIENCE AND CONTENT ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Experience or Content 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 Content.
Indemnity
You will indemnify and hold harmless Viacom and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Experience or Content or (ii) your violation of these EULA.
Limitation of Liability
NEITHER VIACOM NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE EXPERIENCE OR CONTENT WILL BE LIABLE FOR ANY PERSONAL INJURY, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE EULA OR FROM THE USE OF OR INABILITY TO USE THE EXPERIENCE OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT VIACOM 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.
IN NO EVENT WILL VIACOM’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE EULA OR FROM THE USE OF OR INABILITY TO USE THE EXPERIENCE OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO VIACOM FOR USE OF THE EXPERIENCE OR CONTENT OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO VIACOM, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN VIACOM AND YOU.
Agreement to Arbitrate
You and Viacom agree to submit to individual arbitration the resolution of any and all Claims (as defined below) by or between you and/or Viacom, except that you and Viacom agree that the following will not be subject to the mandatory arbitration provisions in this Section: (A) any Claim filed by you or Viacom with respect to any violation, enforcement or validity of patent, trademark, trade dress, service mark, copyright and/or trade secret rights of you, Viacom, or any third party and/or (B) you or Viacom may seek a preliminary injunction, restraining order or other provisional equitable relief in any court as provided herein in connection with any Claim whereby you or Viacom, as applicable, may suffer immediate and irreparable harm for which money damages may be inadequate and impossible to calculate (including, but not limited to, a Claim under subsection (A) above, where such Claim under this Subsection (B) will not be subject to the informal dispute resolution procedures described in the paragraph below; provided, however, that, subsequent to obtaining such preliminary injunction, restraining order or other provisional equitable relief, the Claim will then be submitted to arbitration in accordance with this Section. You and Viacom agree that this Agreement affects interstate commerce, and that the enforceability of this Section will be governed by, construed, and enforced, both procedurally and substantively, by the Federal Arbitration Act, 9 U.S.C. sections 1–9 ("FAA"). Arbitration is the referral of a dispute to one or more impartial persons for a final and binding determination. There is no judge or jury in arbitration, discovery is more limited than in court, there are no class or representative proceedings, and court review of an arbitration decision is limited. An arbitrator must follow this Agreement and can award on an individual basis the same damages and relief as a court (including, but not limited to, injunctive and declaratory relief, statutory damages, and attorneys' fees). "Claim(s)" means any dispute, claim or controversy by or between you and/or Viacom relating to this Agreement, the Experience or the Content, as may be, in each case, modified from time-to-time, and the subject matter hereof, including, but not limited to, any contract, tort, statutory, or equity claims.
Informal Dispute Resolution. Except with respect to Claims described in subsection (B) of the preceding paragraph, before either you or Viacom pursue or participate in any Claim against the other party in arbitration or court proceedings, you or Viacom must notify the other party of the Claim in writing at least 60 days in advance of initiating the arbitration or court proceeding in order to provide a reasonable opportunity to resolve the Claim.
You may send a written notice of your Claim to Viacom at 1515 Broadway, New York, New York 10036, Attention: Viacom Inc. General Counsel. Viacom may send written or electronic notice of its Claim to your email address, Viacom account or any physical or other address Viacom has for you. The notice must describe the Claim in reasonable detail and set forth the relief requested so that the other party has an opportunity to adequately address the Claim. Except with respect to Claims described in subsection (B) of the Section XIX above, you and Viacom agree to negotiate in good faith with each other to try to informally resolve the Claim and, if you and Viacom do not reach an informal resolution of the Claim within 60 days, then the Claim may be submitted to binding arbitration as set forth in the Section XIX of this Agreement.
Arbitration Proceedings and Costs.
Any arbitration will be administered by the American Arbitration Association ("AAA") pursuant to its Consumer Arbitration Rules (the "AAA Rules"), as modified by this Agreement. The AAA Rules, and other information about the AAA, are available at the AAA's website at www.adr.org. A form for initiating arbitration proceedings is available on the AAA's website (see Demand for Arbitration at https://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015820 and, for arbitrations in California, https://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822, but contact the AAA if you have issues accessing these links) and arbitration proceedings shall be initiated in the location described in Section XXIII below. As required by the AAA Rules, if you initiate the arbitration proceedings, you must send the original copy of the completed form to Viacom, which should be sent to Viacom at the following address: 1515 Broadway, New York, New York 10036, Attention: Viacom Inc. General Counsel. If your Claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely based on documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing under the AAA Rules. In all cases, you and Viacom shall exchange documents and other information that you or Viacom intend to use in the arbitration.
Upon filing of an arbitration demand for Claims up to $75,000, Viacom will reimburse you for all necessary filing, administration and arbitrator fees paid by you to the AAA or, if you wish Viacom to pay such fees directly to the AAA, you must request payment of such fees by Viacom by mail to the AAA along with your form initiating arbitration and Viacom will make arrangements to pay such fees directly to the AAA. In the event the arbitrator determines that the Claim(s) you assert in the arbitration are frivolous or vexatious, you agree to reimburse Viacom for all fees associated with the arbitration paid by Viacom on your behalf. You agree that Viacom shall have no obligation to pay any other fees except as determined by the arbitrator.
For Claims that total more than $75,000, the AAA Rules will govern payment of filing, administration and arbitrator fees to the maximum extent permitted by law. The decision of the arbitrator will be binding and conclusive on all parties, and judgment to enforce the decision may be entered by any court of competent jurisdiction.
UNLESS YOU SUBMIT A VALID ARBITRATION/CLASS ACTION WAIVER OPT-OUT NOTICE (AS DESCRIBED BELOW), YOU AND VIACOM AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WHETHER IN ARBITRATION OR IN COURT WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION.
Y
ou and Viacom expressly agree that any Claim is personal to you and Viacom, shall only be resolved by an individual arbitration (or individual court proceedings with respect to Claims excluded from mandatory arbitration as described in Section XIX of this Agreement), and shall in no event be brought as a class arbitration, a class action, or any other representative proceeding. The arbitrator (or court if the Claim is excluded from mandatory arbitration as described in the Section XIX of this Agreement) may only conduct an individual arbitration (or court action if the Claim is excluded from mandatory arbitration as described in the Section XIX of this Agreement), and may not consolidate more than one person's claims and may not preside over any form of representative or class proceeding. If a court or arbitrator determines that this class action waiver is unenforceable in an action between you and Viacom, then this agreement to arbitrate will be unenforceable. Neither you nor Viacom consent to class arbitration.
Right to Opt Out of Mandatory Arbitration and Class Action Waiver. IF YOU DO NOT WISH TO BE BOUND BY THE MANDATORY ARBITRATION AND CLASS ACTION WAIVER PROVISIONS IN THIS AGREEMENT, YOU MUST NOTIFY VIACOM IN WRITING (THE "Arbitration/Class Action Waiver Opt-Out Notice"), WHERE THE ARBITRATION/CLASS ACTION WAIVER OPT-OUT NOTICE MEETS ALL OF THE FOLLOWING REQUIREMENTS:
Sent by first class mail, postage prepaid, certified and return receipt requested or sent by overnight courier service (such as Federal Express) to Viacom Inc., Attention: Viacom Legal Department, Records Management, 1515 Broadway, 51st Floor, New York, NY 10036.
Postmarked (if sent by first class mail) or deposited with the overnight courier service no later than (A), 45 days after the date you accept this Agreement for the first time, unless a longer period is required by applicable law.
Includes your first and last name, address, phone number, email address. We shall use the foregoing information included in the Arbitration/Class Action Waiver Opt-Out Notice to record, process, maintain and administer your opt-out of the mandatory arbitration and class action waiver provisions and not for marketing purposes.
Includes a statement that you do not agree to the mandatory arbitration and class action waiver.
If the Arbitration/Class Action Waiver Opt-Out Notice meets all of the above requirements, you will be deemed to have opted out of the mandatory arbitration and class action waiver provisions in in this Agreement. Note that a valid Arbitration/Class Action Waiver Opt-Out Notice applies only to the individual identified in such notice as opting out.
GOVERNING LAW, ARBITRATION LOCATION, JURISDICTION, VENUE AND JURY TRIAL WAIVER.
With the exception of the provision above that the enforceability of the Arbitration EULA are governed both procedurally and substantively by the FAA, this Agreement and your use of the Experience is otherwise governed by, construed and enforced in accordance with the laws of the State of New York (without regard to that state's conflict of laws rules).
You or Viacom shall initiate arbitration in the United States county or territory in which you reside or, if you do not reside in the United States or one of its territories, in the non-United States country in which you reside; provided, however, that (a) Viacom may request to transfer the arbitration to New York County, New York if it agrees to pay any additional fees or costs you incur as a result of the change in location as such additional fees or costs are determined by the arbitrator and to the maximum extent permitted by law and, upon such request, (b)(i) if you agree to such request, the arbitration shall be transferred to New York County, New York or (ii) if you do not agree to such request, Viacom shall have right to request that the arbitrator determine the location in which the arbitration shall be held. You and Viacom agree that any Claim that is allowed to proceed in court as set forth in Section XIX of this Agreement (including, but not limited to, as a result of your submission of a valid Arbitration/Class Action Waiver Opt-Out Notice), or otherwise proceeds in court in the event the agreement to arbitrate above is found not to apply to you or a particular Claim as a result of a decision by the arbitrator or a court order, is subject to exclusive jurisdiction and venue in the State or Federal Courts situated in the Borough of Manhattan, New York City, State of New York.
To the extent it may be applicable, you and Viacom agree to opt out from and expressly exclude any applicability of the Uniform Computer Information Transactions Act. If any Claim proceeds in court rather than in arbitration, YOU AND VIACOM WAIVE ANY RIGHT TO A JURY TRIAL.
General Terms
This EULA constitute the entire and exclusive understanding and agreement between Viacom and you regarding the Experience and the Content, and this EULA supersede and replace any and all prior oral or written understandings or agreements between Viacom and you regarding the Experience and Content. If any provision of the EULA is held invalid or unenforceable (either by an arbitrator appointed pursuant to the agreement to arbitrate terms above or by court of competent jurisdiction in accordance with the EULA), that provision will be enforced to the maximum extent permissible and the other provisions of these EULA will remain in full force and effect. You may not assign or transfer the EULA, by operation of law or otherwise, without Viacom’s prior written consent. Any attempt by you to assign or transfer the EULA, without such consent, will be null and void. Viacom may freely assign or transfer the EULA without restriction. Subject to the foregoing, the EULA will bind and inure to the benefit of the parties, their successors and permitted assigns.
Viacom’s failure to enforce any right or provision of the EULA will not be considered 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 representative of Viacom. Except as expressly set forth in the EULA, the exercise by either party of any of its remedies under the EULA will be without prejudice to its other remedies under the EULA or otherwise