Terms of Services
1. Introduction
These Terms of Service constitute a legally binding agreement (“Agreement” or “Terms”) between You (whether as Content Provider or LBVR Operator), each as defined below (“You” “Your”, “User” or as applicable, “Content Provider” or “LBVR Operator”), and ARVI VR Inc., a Delaware corporation whose registered office is at registered office at Corporate Consulting Ltd, 605 Geddes Street Wilmington, DE 19805, United States (“We”, “Us” or “ARVI”). The Agreement sets forth general terms and conditions for use of and access to website vrp.arvilab.com and all corresponding webpages associated therewith (“Site”) and our virtual reality platform and management system named Virtual Reality B2B Platform (“Platform”) and our corresponding services as defined below(“Services”).
The Platform and Services covered by the Agreement include (i) the portal through which Content Providers may upload, store or otherwise make available their Content (as defined below) to LBVR Operators, and LBVR Operators may download and otherwise access Content (ii) the cloud-based database where Content or access key to Content is stored and available to LBVR Operators, (iii) other tools, features or feasibility provided by ARVI to Content Providers and LBVR Operators.
2. Acceptance
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING THE SERVICES OR THE SITE, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
We may modify this Agreement from time to time. You are free to choose to accept a modified version of this Agreements or not. Accepting this Agreements, as modified, is required for You to continue using the Site, Platform and Services. You may have to “accept” or “agree” to show Your acceptance of any modified version of this Agreement. If You do not agree to the terms of any modified version of this Agreement, You must terminate Your use of the Site, Platform and Services.
3. Eligibility
The Site, Platform and Services are for use of Content Providers and LBVR Operators only. You represent and warrant that You are either Content Provider or LBVR Operator. The person accepting this Agreement on Your behalf represents and warrants that he/she has the authority to bind You to the terms of this Agreement.
4. Definitions and Interpretations The following terms will have the following meanings as used in this Agreement:
“ARVI Content License” means the Content License for ARVI’s Content.
“ARVI IP” has the meaning set forth in Section 7 hereof.
“ARVI Platform Service Agreement” means the agreement that can be concluded between ARVI and Content Provider to set certain specific terms and conditions for relations between ARVI and Content Provider regarding the Services. In case of discrepancy between the Terms and ARVI Platform Service Agreement, the latter shall prevail. ARVI Platform Service Agreement executed by ARVI and Content Provider is placed on User Account of such Content Provider.
“ARVI TM” has the meaning set forth in Section 7 hereof.
“Content” means the virtual reality game, including pertinent software, data, graphics, images, audio-visual and audio-only content, corresponding updates, supporting information and documentation.
“Content Fee” has the meaning set forth in Section 8 hereof.
“Content License” means the end user license agreement or similar instrument setting out terms and conditions of commercial use of Content between Content provider and LBVR Operator. Save for ARVI Content License, We are not a party to a Content License and shall have no obligations or liabilities thereunder.
“Content Provider” means a developer or distributor of Content that offers or makes available such Content on or through the Platform including ARVI with regard to ARVI’s Content.
“LBVR Operator” means a corporation, company, partnership or sole proprietorship owning and operating a location-based virtual reality gaming center, hall, room, other establishment or venue.
“Net Content Fee” has the meaning set forth in Section 8 hereof.
“Net Revenue” has the meaning set forth in Section 8 hereof.
“Service Fee” has the meaning set forth in Section 8 hereof.
“Service Fee Agreement” means the agreement that can be concluded between ARVI and Content Provider to set the amount of the Service Fee other than the amount specified herein.
“Services” means for (i) the Content Provider, opportunity, facilities and features to distribute their Content through or due to the Platform, and (ii) the LBVR Operator, opportunity, facilities and features to access and use the Content through or due to the Platform.
“Third-Party Materials” has the meaning set forth in Section 12 hereof.
“Third-Party Services” has the meaning set forth in Section 12 hereof.
“User Account” has the meaning set forth in Section 5 hereof.
“User Credentials” has the meaning set forth in Section 5 hereof.
“VR Location” means a location-based virtual reality gaming center, hall, room or other establishment or venue.
For purposes of this Agreement: (i) the words "include," "includes" and "including" are deemed to be followed by the words "without limitation"; (ii) the word "or" is not exclusive; and (iii) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement. Words used in the singular, where the context so permits, shall be deemed to include the plural and vice versa. The definitions of terms in the singular herein shall apply to such terms when used in the plural where the context so permits and vice versa.
5. User Account
To access and use certain content, features, tools and functionality of the Platform, including to upload or access Content, You must register for an account (“User Account” or “Account). You will register for a User Account by creating a username and password combination (“User Credentials” or “Credentials”) and providing certain personal information. Depending on the type of user You are (e.g., Content Provider, Operator), We may ask You to provide additional information (e.g., W-9 form, W-8 form, billing address, etc.) and initiate an approval process. We collect, use and store such information in accordance with our Privacy Policy. You are solely responsible for providing and maintaining the accuracy and content of Your information. You are also responsible for maintaining the strict confidentiality of Your User Credentials and You are responsible for any access to or use of the Platform by You or any person or entity using Your User Credentials. You agree to immediately notify Us of any unauthorized use of Your User Credentials or User Account or any other breach of security. You are solely responsible for (a) control of the dissemination and use of Your User Credentials and User Account; (b) control of access to Your User Credentials and User Account; and (c) termination of Your User Account for Platform. We reserve the right to deny access, use and registration privileges to You if We believe You have provided inaccurate information or if there is a question about the identity of the person trying to access the Platform. We shall not be responsible or liable for any loss or damage arising from Your failure to comply with this Section 5.
6. Content
Content available on or through the Platform includes ARVI’s Content and third-party Content.
Content Provider will be responsible for uploading Content to the Platform through its User Account and submitting all required information and documentation required to use such Content including, but not limited to a Content License, any compatibility requirements, health and safety information, and accurately disclosing all permissions and consents necessary for Content to function. Any Content that is not properly uploaded or otherwise fails to comply with these requirements or any other requirements in this Agreement may not be available through the Platform. Content Provider is solely responsible for content of its Content, its uploading, offering and supporting on the Platform, for ensuring Content’s compatibility with the virtual reality products and services for which such Content is intended, and Content Provider must clearly communicate any compatibility or other requirements which are necessary for users of Content. Content Provider must determine the countries in which its Content may be available or choose countries or territories in which Content must not be available. Content Provider must ensure that Content and Content License and all related information comply with all applicable country specific laws and regulations. Content and the use of the Platform by Content Provider must comply with all applicable laws and regulations including any laws regarding content and age rating, and the export of data or software to and from all relevant countries.
Some Content may be not available for certain countries, locations or LBVR Operators as Content Provider or ARVI may determine. The Content Provider may request ARVI to disable access to the Content for specific LBVR Operator.
Each Content placed on or available via the Platform is subject to Content License provided by appropriate Content Provider. To download or otherwise access Content available on or via the Platform LBVR Operator must accept appropriate Content License. LBVR Operator shall use Content in accordance with the terms and conditions of appropriate Content License. The availability and use of Content will be terminated if Content Provider terminates its Content License. Save for ARVI Content License, We are not a party to a Content License and shall have no obligations or liabilities thereunder.
LBVR Operator is solely responsible for the use of Content in accordance with applicable Content License, law and regulations. LBVR Operator shall observe all compatibility, age, health and safety requirements for Content determined by Content Provider. LBVR Operator shall not mitigate any age, health or safety requirements or restrictions established for Content by Content Provider but LBVR Operator can apply more strict age, health or safety requirements. Any violation of Content License may result in termination of appropriate license and the right to use appropriate Content as well as other consequences. LBVR Operator may be disabled (denied) access to Content upon request of appropriate Content Provider. In this case ARVI will notify such LBVR Operator at least thirty (30) days in advance. To have access to certain Content LBVR Operator may be required to have constant access to Internet. If LBVR Operator has not been online (connected to the Platform via Internet) within seven (7) days, the access of such LBVR Operator to Content will be automatically blocked.
7. ARVI Intellectual Property Rights
Save for Content uploaded to the Platform or otherwise made available on or through the Platform by third-party Content Providers, ARVI owns or otherwise has the necessary rights to the Platform including all its content (e.g., audio-visual content, photographs, audio, video, images, illustrations, graphics, documents, software, data, other materials) displayed on or otherwise made available or accessible through the Platform (collectively, “ARVI IP”). We retain all right, title and interest in ARVI IP and any intellectual property rights therein. When You use the Platform, You do not acquire any ownership of any such ARVI IP.
The trademarks, brands, logos and trade names of ARVI (collectively “ARVI TM”) displayed on the Site or Platform are registered and/or unregistered intellectual property of ARVI and cannot be used for any purpose without our prior written consent or license.
Except as ARVI expressly permits in writing, You may not download, display, copy, distribute, modify, perform, transfer, create derivative works from, sell, or otherwise exploit any ARVI IP. The framing or scraping of or in-line linking to ARVI IP, and/or the use of webcrawler, spidering or other automated means to access, copy, index, process and/or store any ARVI IP, other than as expressly authorized by ARVI, is prohibited. Additionally, You are not permitted to alter, delete or conceal in any manner any copyright, trademarks, or other notices contained on the Platform or ARVI IP.
ARVI owns all statistical data and information, and any derivatives or aggregations thereof, in any form or medium, that is collected by or through the Platform including any data and information derived, processed or generated by the Platform based on Your use of and access to the Platform (collectively “Data”). No rights or licenses are granted to You to use the Data under this Agreement, except as expressly set forth in a ARVI Platform Service Agreement or ARVI Content License and ARVI reserves all rights, title, and interest therein.
Any unauthorized or prohibited use of any ARVI IP, ARVI TM or Content may violate or infringe copyright and other laws of the United States and other countries, as well as applicable local and state laws, and may subject You to liability for such unauthorized use.
8. Fees
Content Fee. Usage of Content by LBVR Operator is subject to a fee or charge ("Content Fee”) payable to ARVI. Content Fee depends on pricing models (e.g., per minute, per player, subscription (recurring) fee, revenue sharing, etc.), prices or rates established by Content Provider and displayed on the Site for each Content. Unless otherwise expressly stated, all prices and rates do not include any applicable taxes. Content Providers may change their pricing models, prices, or rates from time to time subject to prior notification.
To use particular Content LBVR Operator must choose one of pricing models available for such Content. If LBVR Operator opts new pricing model or rate, such new pricing model or rate will be applied starting from the next calendar month. If LBVR Operator opted subscription (recurring) fee, subscriptions for Content which subscription fees are prepaid, shall terminate at the end of the subscription term. There shall be no refunds of subscription (recurring) fees (except where required by law).
If LBVR Operator chooses a revenue share pricing model, such LBVR Operator must provide ARVI with information on their retail prices and discount policy to be applicable to appropriate Content and seek ARVI’s approval thereof. ARVI reserves the right, at its discretion, to reject the retail prices and/or discount policy proposed by LBVR Operator if such prices or discount policy seem unreasonable, inadequate, incorrect, etc. Once ARVI approves the retail prices and discount policy proposed by LBVR Operator such LBVR Operator may use appropriate Content based on the revenue share model. Any change in the retail prices or discount policy of LBVR Operator approved by ARVI is subject to ARVI’s further approval. If LBVR Operator applies the retail prices or discounts different from those approved by ARVI, then ARVI may bill such LBVR Operator according to a per minute pricing applicable to that Content. ARVI may bill LBVR Operator according to a per minute pricing applicable to that Content if LBVR Operator applies undefined price and discount policy.
Bills issued by ARVI shall be subject to a five (5) Business Day review period by LBVR. If LBVR does not review the Bill within this period, the Bill shall be deemed accepted and payment shall be due within three (3) Business Days according to ARVI’s billing procedure. If the Content Fee is not paid within the payment term, LBVR Operator falls into default without any notice to that effect being required. In such case, ARVI has the right to suspend provision of the Services to such LBVR Operator entirely or partially including access to and use of Content. In case of late payment, LBVR Operator is bound, besides to payment of the amount due and the commercial interest coincided over it, to the full reimbursement of both extrajudicial and judicial collection costs, including the expenses for lawyers, legal experts, bailiffs, and collection agencies.
Net Revenue. Amounts actually received by ARVI from LBVR Operators directly or indirectly (via ARVI’s distributors and resellers) for the commercial utilization of the Games by LBVR Operators in the preceding calendar month less (i) sales taxes, use taxes, withholding taxes, VAT and any other taxes or duties that a governmental authority requires ARVI to pay with respect to the subject matter hereunder (“Taxes”), (ii) any amounts owed by ARVI to its distributors or resellers, and (iii) any disputes and refunds. Content Provider understands and agrees that the Net Revenue is after deduction of commissions, revenue shares or other remuneration withheld by LBVR Operators, ARVI’s distributors, resellers or other intermediaries for their services.
Service Fee. Usage of the Platform by Content Provider for distributing their Content thought the Platform is subject to a fee (“Service Fee”). The Service Fee shall be deducted by ARVI from the Net Revenue. The Service Fee shall amount to 50% of the Net Revenue unless another amount is agreed upon in Service Fee Agreement or ARVI Platform Service Agreement. ARVI reserves the right to change the Service Fee at any time by 30 days prior notice. If Content Provider does not wish to pay the increased fees such Content Provider may opt-out of using the Services.
Net Content Fee. Amount of the Content Fee remaining after deduction of Service Fee and all applicable Taxes, if any, is payable to appropriate Content Provider (“Net Content Fee”). For the sake of clarity, the Net Content Fee is payable only if and after ARVI has received the Content Fee from appropriate LBVR Operator for their use of relevant Content. Additionally, all costs associated with the execution of payments, such as fees charged by bank or other payment systems, shall be borne by the Content Provider.
ARVI IS NOT RESPONSIBLE FOR COLLECTING CONTENT FEE FROM LBVR OPERATOR BEING IN DEFAULT.
Unless otherwise provided by the ARVI Platform Service Agreement, the Net Content Fee shall be paid to appropriate Content Provider monthly by the end of the calendar month following the month when ARVI received appropriate Content Fee from LBVR Operators (reporting month). ARVI may set a minimum threshold amount for the Net Content Fee. If the Net Content Fee owed to Content Provider at the end of any reporting month are below the minimum threshold amount, then ARVI shall not be required to pay such Net Content Fee until such time as the cumulative Net Content Fee due to appropriate Content Provider meets or exceeds are the minimum threshold amount.
Platform Fee. ARVI may enter a charge payable by LBVR Operators for their use of the Platform or certain features of the Platform (“Platform Fee”). If ARVI opts to introduce the Platform Fee each LBVR Operators will be notified at least three (3) months before the date on which the Platform Fee becomes payable. If LBVR Operator does not wish to pay the Platform Fee such LBVR Operator may opt-out of using the Platform.
Additional Services Fee. Certain features and functionalities including third party services (“Additional Services”) may be available for an additional fee. Such fee will be displayed within Your User Account, on the Site or prior to Your purchase of such Additional Services. ARVI reserves the right to increase the fees associated with Additional Services. If You do not wish to pay the increased fees You may opt-out of using the applicable Additional Services.
9. Data Tracking, Billing and Reporting
LBVR Operator grants ARVI the right to track via the Platform the use of Content by such LBVR Operator and read, collect, store and process telemetry data and other information related to the use of Content by such LBVR Operator including information on hardware and software used, quantity and duration of game sessions, number of players, gaming process, etc. LBVR Operator also grants ARVI the right to share with appropriate Content Provider telemetry data and other information related to the use by LBVR Operator of Content of such Content Provider.
Content Fee for the usage of Content by LBVR Operator will be billed and collected by ARVI normally on a monthly basis pursuant to ARVI’s billing procedure.
For Content Providers, ARVI will provide through their User Accounts, with a report containing reference data on the Content usage: date, time and duration of the game sessions, number of players and minutes played, their status. This data may only be used for the assessment of the Net Content Fee; the exact amount of the Net Content Fee is calculated by ARVI based on the actual Net Revenue.
10. Taxing
ARVI may report revenue from Content to the relevant tax authorities and collect and remit certain Taxes on Your behalf where required by applicable law. If ARVI, under mandatory tax law is required to withhold certain Taxes from the payment to You, ARVI may deduct such mandatory Taxes to the extent required under the applicable tax law and remit such Taxes to the appropriate tax authority. In such a case ARVI will provide You with copies of all necessary documents to claim and receive appropriate tax credit.
11. Licenses
By uploading Content to the Platform or otherwise making Content available through the Platform, Content Provider hereby grants to ARVI a non-exclusive, worldwide, royalty-free license to use, copy, transmit, store, perform, display, distribute and make available such Content in connection with and for the purpose of testing, marketing, promotion and distribution of the Content through the Platform.
Content Provider hereby grants to ARVI a limited, nonexclusive, royalty-free license to copy, display and otherwise use Content Provider’s trade names, trademarks, service marks, logos and other distinctive brand features for purposes of display and promotion of the Content on the Platform .
Content Provider hereby grants to ARVI a limited, nonexclusive, royalty-free license to copy and otherwise use the uploaded Content or its characters, graphics, images, audio-visual and audio-only content for production, distribution, display, or placement of promotional materials for the Content.
Subject to and conditioned on Your compliance with the terms and conditions of this Agreement and other agreement between ARVI and You in capacity of either Content Provider or LBVR Operator, ARVI grants a personal, non-exclusive, non-assignable, non-transferable, and limited right and license to use and access the Platform. To use certain ARVI’s software available on or through the Platform You must read and accept an appropriate end user license agreement provided with such software.
Prior to download or otherwise access any Content, LBVR Operator shall read and accept Content License proposed by appropriate Content Provider.
12. Third-Party Services and Third-Party Materials
Your use of any third-party’s websites (whether in the form of a hyperlink or redirect), platforms, tools or services (“Third-Party Services”) referenced or included anywhere in connection with the Platform does not constitute an endorsement by, nor does it incur any obligation, responsibility or liability on the part of ARVI. Your use of the Third-Party Services is governed by the terms and conditions between You and the Third-Party Service. ARVI reserves the right to restrict Your access to or the availability of any Third-Party Services that You access via the Platform. If any Third-Party Services You interact with obtains or collects personal information from You, in no event shall ARVI assumes or has any responsibility or liability. Accordingly, ARVI encourages You to be aware when You leave the Platform and/or use Third-Party Services and to read the applicable terms and conditions and privacy policy of each Third-Party Service You use.
You acknowledge and agree that by accessing or interacting with the Platform, some third-party materials and information, including any software (e.g., the SteamVR® provided by Valve Corporation), components, accounts, licenses, advertisements, documents, data, content, specifications, products, games, equipment or components that are used in conjunction with, or of or relating to the Platform, or use in connection with the Platform (collectively, “Third-Party Materials”) may be displayed, viewed, accessed or provided in connection with Your use of the Platform and/or Content. ARVI does not own or control any Third-Party Materials and ARVI shall not incur any obligation, responsibility or liability in
13. Assignment
This Agreement, and any rights, licenses and privileges granted herein, may not be transferred or assigned by You, but may be assigned or transferred by ARVI without restriction, notice or other obligation to You.
14. Term and Termination
This Agreement shall commence on the date You indicates Your acceptance of this Agreement and shall continue until terminated under the terms of this Agreement.
ARVI may terminate this Agreement with You by providing You thirty (30) days prior written notice using any reasonable means including notification to Your User Account, through the applicable Service, or email. The said notice period does not apply when there are reasons which force Us to instantly terminate the Agreement. Upon termination ARVI may disable Your access to Your User Account, Platform and Services.
LBVR Operator may terminate this Agreement at any time, without prior notice to ARVI, by disabling its User Account via the Platform. Except as may be expressly set forth herein or other agreement between You and ARVI, upon disabling User Account and/or other termination of this Agreement by LBVR Operator for any reason, such LBVR Operator will no longer be able to use the Platform. Upon termination of this Agreement, all licenses granted to such LBVR Operator by ARVI shall terminate. Nothing herein precludes LBVR Operator from using Content upon termination of this Agreement (subject to maintaining a valid Content License) provided that You does not use the Platform in connection with such continued use.
Content Provider may terminate this Agreement by providing ARVI thirty (30) days prior written notice. From the date of such written notice and prior to termination date, Content Provider may continue to interact with the Platform, provided however, Content Provider shall not upload any new Content, change any Content Fee. Content shall remain on the Platform for the 30-day period, ARVI shall continue to track usage, collect fees and pay such Content Provider any Net Content Fee due prior to termination. ARVI shall notify LBVR Operators that appropriate Content shall be removed from the Platform. Upon expiration of the 30-day period, this Agreement shall terminate.
Upon termination of this Agreement with a Content Provider for any reason ARVI shall disable Content Provider’s access to its Account (and any information contained therein) and Content Provider shall not access the Platform and all licenses granted by ARVI to Content Provider shall terminate. ARVI shall cease tracking usage of and collecting any Content Fee for any further use of Content of such Content Provider and remove its Content from the Platform. Any fees due from such Content Provider prior to termination shall remain payable to ARVI and any fees due from ARVI to that Content Provider prior to termination shall remain payable. ARVI shall be permitted to retain any Data it has collected relating to Content of such Content Provider.
15. Indemnity
You agree to indemnify, defend and hold ARVI and its affiliates, and their respective successors and assigns, present and former directors, officers, employees, representatives, agents, licensors, partners, suppliers and service providers harmless from any and all claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees), arising in any way out of or in connection with (a) Your use of the Platform or Services; (b) Your breach or violation this Agreement; or (c) Content uploaded to the Platform or otherwise accessible or used through the Platform. ARVI reserves the right to assume the exclusive defense and control of any matter subject to indemnification by You and all negotiations for its settlement or compromise, and You agree to fully cooperate with ARVI upon ARVI’s request.
16. Disclaimer
YOUR ACCESS AND USE OF THE PLATFORM AND OUR SERVICES MAY BE SUBJECT TO INTERRUPTIONS, LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT WITH THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THIRD-PARTY SERVICES AND THIRD-PARTY MATERIALS, AND ARVI IS NOT RESPONSIBLE FOR ANY INTERRUPTIONS, LIMITATIONS, DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROMSUCH PROBLEMS. YOUR USE OF THE PLATFORM OR ANY ITEMS OBTAINED THROUGH THE PLATFORM IS AT YOUR OWN RISK. EXCEPT FOR ANY WARRANTIES BY ARVI EXPRESSLY PROVIDED IN THIS AGREEMENT, THE PLATFORM, SERVICES, CONTENT AND ARVI IP ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OR STATEMENTS OF ANY KIND, EXPRESS OR IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER ARVI NOR ANY PERSON ASSOCIATED WITH ARVI MAKES ANY STATEMENT, WARRANTY, OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE PLATFORM, SERVICES, CONTENT OR ARVI IP. WITHOUT LIMITING THE FOREGOING, NEITHER ARVI OR ANY PERSON ASSOCIATED WITH ARVI MAKES ANY STATEMENT, WARRANTY, OR REPRESENTATION THAT THE FEATURES AND FUNCTIONS CONTAINED IN THE PLATFORM, SERVICES, CONTENT OR ARVI IP WILL MEET YOUR SPECIFIC REQUIREMENTS OR EXPECTATIONS OR THAT THE OPERATION OF THE PLATFORM, SERVICES, CONTENT OR USE OF THE ARVI IP WILL BE UNINTERRUPTED OR ERROR FREE OR INTEROPERABLE OR COMPATIBLE WITH OTHER SOFTWARE OR SERVICES, THAT DEFECTS WILL BE CORRECTED, THAT THE PLATFORM, SERVICES, CONTENT OR ARVI IP WILL BE UPDATED, UPGRADED OR IMPROVED, THAT THE PLATFORM, SERVICES, CONTENT OR ARVI IP ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ARVI HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE, TITLE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. NO VERBAL OR WRITTEN REPRESENTATIONS, INFORMATION OR ADVICE GIVEN BY ARVI OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY EXPRESS
17. Limitations of Liability
IN NO EVENT SHALL ARVI, OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS, OR EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY DAMAGES WHATSOEVER, INCLUDING: (I) LOSS OF PRODUCTION, USE, BUSINESS, INCOME, REVENUE, PROFIT, OR DIMINUTION IN VALUE; (II) IMPAIRMENT, INABILITY TO USE, LOSS, INTERRUPTION, OR DELAY OF THE PLATFORM OR SERVICES; (III) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (IV) ANY LOSS, DAMAGE OR IMPAIRMENT DUE TO ANY CLAIMS OR ACTIONS FOR PERSONAL INJURY OR PROPERTY DAMAGE ARISING OUT YOUR USE OR ACCESS TO THE PLATFORM OR SERVICES (INCLUDING ANY INJURY OR PROPERTY DAMAGE THAT OCCURS AT AN OPERATOR’S VR LOCATION); OR (V) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES (INCLUDING SUCH LOSSES IDENTIFIED IN (I) – (IV) OF THIS PROVISION TO THE EXTENT THOSE LOSSES OR PORTIONS THEREOF ARE NOT DIRECT LOSSES), REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF ARVI AND ITS LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED EITHER $300.00 OR THE AMOUNT OF FEES PAID TO ARVI DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM OR ACTION AROSE, WHICHEVER IS LESS. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
18. Modifications
We may modify this Agreement from time to time, and at any time, without notice to You, for any reason, in our sole discretion. We may post or display notices of material changes on the Site and/or notify You via Your User Account. The form of such notice is at our discretion. Once We post or make them available on the Site, these changes become effective immediately and if You use the Platform after they become effective it will signify Your agreement to be bound by the changes. We recommend that You check back frequently and review this Agreement regularly so You are aware of the most current rights and obligations that apply to You.
19. Governing Law
This Agreement shall be governed and interpreted by the laws of New York, USA, without giving effect to any choice or conflict of law provision.
20. Digital Millennium Copyright Act
(a) Notice. If You are a copyright owner or an agent thereof and believe that any Content infringes upon Your copyrights, You may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by emailing Our Copyright Agent at [email protected] with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
For clarity, only DMCA notices should go to the Copyright Agent and not any other feedback, comments, requests for technical support, or other communications. You acknowledge that if You fail to comply with all of these requirements, Your DMCA notice may not be valid.
(b) Counter-Notice. If You believe that Your Content that was removed (or to which access was disabled) is not infringing, or that You have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the material in Your Content, You may send a counter-notice containing the following information to the Copyright Agent:
If a counter-notice is received by the Copyright Agent, ARVI may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the Content Provider or user, the removed content may be replaced, or access to it restored, in ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at ARVI's sole discretion.
21. Miscellaneous
Notices. Except as otherwise provided herein or in ARVI Platform Service Agreement, if applicable, all notices made in connection with this Agreement must be given via a signed electronic (save for service of process) document. Electronic signatures are legally binding. Notices will be deemed given the next Business Day following the day they are sent by email: to the address set forth in Your User Account, if addressed to You, or to [email protected] if addressed to ARVI.
Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfil its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement shall not be affected and will continue in full force and effect.
Survival; Claims; Waiver. Any provision which must survive in order to allow Us to enforce its meaning shall survive the termination of this Agreement; however, no action arising out of this Agreement or Your use of the Platform, Site, Services, Content or ARVI IP, regardless of form or the basis of the claim, may be brought by You more than one (1) year after the cause of action has arisen (or if multiple causes, from the date the first such case arose). The failure of ARVI to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision.
Force Majeure. In no event will ARVI be liable or responsible to You, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by any circumstances beyond ARVI's reasonable control ("Force Majeure Event"), including service interruptions by third-party providers, denial of service attacks, acts of God, war, riot, fires, floods, epidemics, pandemics, or failure of public utilities or public transportation systems, or national or regional shortage of adequate power or telecommunications systems. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more.
Export Regulations. ARVI is subject to regulation by the agencies of the U.S. Government, including the U.S. Department of Commerce and State, which prohibit export or diversion of certain technological products to certain countries. You shall comply in all respects with all applicable export and re-export restrictions and not permit anyone to use or access the Services in a U.S. embargoed country or in violation of any U.S. export law or regulation. You also agree to indemnify, defend, and hold ARVI harmless from any loss, damages, liability, or expenses incurred by ARVI as a result of Your failure to comply with any export regulations or restrictions.