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This End User License Agreement (“Agreement”) is an agreement between Holotech Studios Inc., its subsidiaries and affiliates (“Holotech”) and any person who downloads, installs or uses the Application (“You”).
This Agreement governs Your use of the Holotech services , and all related software, documentation, updates and upgrades that replace or supplement the application and are not distributed with a separate license (together, the “Application”).
By downloading and installing the Application, You consent to be bound by this Agreement. In the event You can bypass installing the Application, then You shall be deemed to have accepted to be bound by this Agreement by copying, downloading, accessing or otherwise using the Application. Furthermore, You accept to be bound by this Agreement every time You enter or re-enter the Application.
PLEASE READ THESE TERMS OF THIS AGREEMENT CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST HOLOTECH ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST HOLOTECH RESOLVED BY A JURY OR IN A COURT OF LAW.
You hereby affirm that You have reached the legal age of majority in Your country of residence, understand and accept the entirety of this Agreement, or, if You are under the legal age of majority in Your country of residence, then Your parent or legal guardian has consented to this Agreement, acting under the parental authority or power of guardianship legally vested in them by law.
By downloading, installing or using the Application, You also acknowledge that You have read and understood to Holotech’s Privacy Policy.
You acknowledge that Holotech has provided You with enough time for reviewing the terms and conditions of this Agreement and those of Holotech’s Privacy Policy before Your acceptance.
If You do not or cannot agree to all of the terms and conditions of this Agreement, then do not download, install or use the Application or promptly delete the Application.
Access
Holotech will provide You access to use the Application as described in this Agreement. Holotech might provide some or all elements of the Application through third party service providers.
You may be required to register an account with Holotech in order to access and use certain features of the Application (an “Account”). If you choose to register for an Account to use the Application, You agree to provide and maintain true, accurate, current and complete information about yourself as prompted by Holotech’s registration form. Registration data and certain other information about you are governed by our Privacy Policy.
You are responsible for maintaining the confidentiality of your Account and password, if any, and are fully responsible for any and all activities that occur under Your Account. You agree to immediately notify Holotech of any unauthorized use of your Account or any other breach of security. Holotech will not be liable for any loss or damage arising from Your failure to comply with this section.
License Grant
Holotech grants You a personal, non-exclusive, non-transferable, non-sublicensable limited right and license to use the Application for Your personal, or limited commercial use (subject to the terms and conditions contained in this Agreement) (the “Basic License”). For an additional fee, Holotech may offer PRO Users (formerly known as VIP Users) a separate License Agreement to permit such PRO Users all rights granted under the Basic License, and also the right to make this Application available for broader commercial use, in accordance with the terms of this Agreement (the “PRO License”, formerly known as "VIP License", and together with the Basic License, each a “License”). For purposes of this section, You qualify as a "PRO User” if You earn more than $500 USD per month from Your User Generated Content or Your Community Made Content, as determined in Holotech’s sole discretion.
The rights that Holotech grants You under the License are subject to the terms of this Agreement, and You may only make use of the License if You comply with all applicable terms.
The term of Your License shall commence on the date that You start to download, install or otherwise use the Application, and shall end upon the termination of the License either by You or by Holotech.
Fees
To the extent the Application or any portion thereof is made available for any fee, You will be required to select a payment plan and provide Holotech information regarding your credit card or other payment instrument. You represent and warrant to Holotech that such information is true and that You are authorized to use the payment instrument. You will promptly update Your Account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur.
Holotech reserve the right to change Holotech’s prices. If Holotech does change prices, Holotech will provide notice of the change through the Application or in email to you, at Holotech’s option, at least thirty (30) days before the change is to take effect. Your continued use of the Application after the price change becomes effective constitutes Your agreement to pay the changed amount. You shall be responsible for all taxes associated with the Application other than U.S. taxes based on Holotech’s net income.
Reservation of Rights
This version of the Application and any related software applications, official avatars or files which may be provided to You to “patch” or “update” the Application, as well as any on-line or electronic documentation relating to the Application, including any and all copies and derivative works of the foregoing and any proprietary and confidential information which may be disclosed to You by Holotech (“Confidential Information”) are the copyrighted work of Holotech.
You acknowledge and agree that You shall have no ownership or other property interest in the Application, its software and documentation, and You further acknowledge and agree that all such rights are and shall forever be owned by and inure to the benefit of Holotech.
The License is limited to the intellectual property rights of Holotech and its licensors in the Application and does not include any rights to other patents or intellectual property. The Application may contain certain third-party licensed materials and licensors of those third-party materials may enforce their rights in the event of any violation of this Agreement by You.
All rights granted to You under this Agreement are granted by express license only and not by sale. No license or other rights shall be created hereunder by implication, estoppel, or otherwise.
Restrictions
This Agreement governs Your use of the Application, all related documentation, as well as any updates and upgrades that replace or supplement the software in any respect and which are not distributed with a separate license. Any use, reproduction or redistribution of the Application not expressly authorized by the terms of this Agreement is expressly prohibited.
Subject to the grant of License herein, You may not, in whole or in part, copy, reproduce, translate, reverse engineer, derive source code, modify, disassemble, decompile, create derivative works based on the Application (in each case, except as expressly permitted herein), or remove any proprietary notices on or in the Application. Failure to comply with the restrictions and limitations contained in this section shall result in the immediate, automatic termination of the license granted hereunder and may subject You to civil and/or criminal penalties.
Furthermore, You agree that You shall not, under any circumstances:
Sell, grant a security interest in or transfer reproductions of the Application, its related software and/or documentation to other parties in any way not expressly authorized herein, nor shall You rent, lease or license the Application;
Sell or disclose to any person or entity other than Holotech any serial key, activation code, or other unique identifier or means of authentication provided to You by Holotech;
Resell or rent the functionality of the Application or its related software to third parties in endeavors that include (but are not limited to) use at a cybercafé, computer gaming center, convention, services marketplace (online or offline) or in any other digital or location-based site except with the express consent of Holotech.
Updates and Patches
You acknowledge and agree that Holotech does not have any maintenance or support obligations with respect to the Application.
At its own discretion, Holotech may deploy or provide patches, updates, or upgrades to the Application that must be installed in order for You to continue to use the Application. This Agreement shall apply to any such updates, upgrades and/or additional features that are not distributed with a separate license or other agreement.
Holotech may update the Application remotely, including, without limitation, the Application and related software residing on Your device(s), without Your knowledge or consent, and You hereby grant to Holotech Your consent to deploy and apply such patches, updates and modifications to the Application.
When using the Application, You may create and save custom content. If upgrades or patches are provided or deployed by Holotech, this content or its format may be reset when a particular build, patch or update completes the testing phase and is made available to You, and access to any previous version(s) of the Application and content therein stored may be ended upon the availability of such updates, upgrades and/or implementation of any additional features, without any prior notice to You from Holotech.
Interaction with Third Party Sites and Services
The Application may allow You to interact with third-party websites, web browsers and web services (“Links”). The Links are not under the control of Holotech and Holotech is not responsible for the content of any Links, including without limitation any link contained in a Link or any changes or updates to a Link. Holotech may provide Links only as a convenience and the inclusion of any Link does not imply endorsement by Holotech of the Link or any association with its operators. You are solely responsible for any consequences of accessing a Link as well as for viewing and abiding by the privacy statements and terms of use posted in connection with those Links. Use of Links is at Your own risk.
Development Versions of the Application
You acknowledge that Holotech may put at Your disposal in-development versions of the Application (each, a “Beta Version”). You may use any Beta Version in accordance with the terms and conditions of this Agreement. Beta Versions may not include all functionality and features accessible as part of the Application. Holotech has the right to terminate a Beta Version at any time for any reason. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, HOLOTECH WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO BETA VERSIONS.
Your use of such in-development versions of the Application does not constitute an employment agreement or offer of such an agreement between You and Holotech.
Holotech does not ask or require You to work a certain number of hours, shifts, etc. as part of Your use of the Application.
Your use of in-development versions of the Application is strictly voluntary and done solely for Your personal enjoyment.
Holotech expects You only to use Your leisure time to participate in this Application and does not expect You to forego other activities, including gainful employment, during the time You spend using such in-development versions of the Application.
You may stop using in-development versions of the Application at any time that You wish.
User Generated Content
By using the Application, You can create and publish audio and video content, that may take the form of:
-Rasterized image files
-Rasterized video files
-Audio or video streams
(Together, “User Generated Content”).
Your User Generated Content can feature one or several of the following:
- Avatars, defined as two-dimensional and/or three-dimensional graphical representations, icons, figures or animations, whether generic or user-personalized, depicting the user, the user’s alter ego or a character;
- Backgrounds, defined as the images, animations or otherwise varied compositions displayed behind or underneath Avatars, whether generic or user-personalized. References to “Backdrops” which may be made in this Agreement or other documents relating or applicable to the Application shall be considered references to Backgrounds;
- Accessories, defined as two-dimensional or three-dimensional graphical representations, figures or animations, whether generic or user-personalized, used to personalize Avatars and/or Backgrounds. References to “Props” which may be made in this Agreement or other documents relating or applicable to the Application shall be considered references to Accessories;
- Audio Assets, defined as sound samples either pre-recorded or generated on-the-fly by the application through capturing and processing microphone input
Audio and video content created by You using exclusively Avatars, Backgrounds, Audio Assets and/or Accessories made available to You within the Application is subject to the provisions of this current Section, without prejudice to any third-party rights which may apply, as herein provided.
Custom Avatars, Backgrounds, Audio Assets and/or Accessories You create using Community Tools or by any other means or methods made available to You by Holotech or its affiliates constitute “Community Made Content”, a different class of content that shall be subject to the provisions of this Agreement provided in the specific “Community Made Content" section below.
In the event that Your User Generated Content combines Avatars, Backgrounds, Audio Assets and/or Accessories made available within the Application or on the Storefront, as well as custom Avatars, Backgrounds and/or Accessories that You create, then Your use of such User Generated Content shall collectively be subject to the provisions governing Community Made Content, as provided below.
You are fully responsible for Your User Generated Content. Furthermore, certain restrictions are applicable to use of such User Generated Content, including:
- The video or audio content created with Application must never be sold or gated from the public behind paywalls, including but not limited to admission-type fees or paid subscriptions, unless specifically approved by Holotech in a separate personalized Agreement or such rights are otherwise expressly granted to you by Holotech in another way; provided, however, that the foregoing restrictions will not apply to content created pursuant to a PRO License (formerly known as a VIP License);
- The use of the audio and video content created with Application is further governed by the following limitations and licenses: Creative Commons Attribution Non-Commercial-Share Alike 4.0 International (CC BY-NC-SA 4.0). Detailed descriptions of the Creative Commons license types can be found in digital format at provided, however, the that foregoing restriction will not apply to audio and video content created pursuant to a PRO License (formerly known as a VIP License);
-The use of the audio and video content created with the Application while using any of third-party licensed Avatars, Backgrounds or Accessories is further governed by the licensing terms listed in the original asset description text within the Application and on the Storefront. You must verify the nature of these limitations and comply with them;
- When creating content by using community-created assets (Avatars, Backgrounds or Accessories), additional limitations on allowed content use or ownership may apply on a case by case basis, as dictated by their creators. You must verify the nature of these limitations and comply with them.
- In the case of overlaps between licenses governing different Avatars, Backgrounds or Accessories used in creating content (by using a mix of such Avatars, Backgrounds and/or Accessories), the most restrictive license governing any such Avatars, Backgrounds or Accessories shall apply.
You hereby grant Holotech a non-exclusive, fully-paid, royalty-free, irrevocable, perpetual, transferable, and sublicensable license to use, copy, modify, adapt, distribute, prepare derivative works based on, publicly perform, publicly display, make, have made, use, sell, offer to sell, import, and otherwise exploit Your User Generated Content for any purposes, for all current and future methods and forms of exploitation in any country. You may not create, generate, or make available any User Generated Content to which You do not have the right to grant Holotech such license.
Your User Generated Content shall not: (i) infringe any third party intellectual property or other proprietary or publicity/privacy rights, (ii) violate any law or regulation, (iii) be defamatory, profane, obscene, child pornographic or harmful to minors, (iv) contain any viruses, trojan horses, worms, time bombs or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information, (v) alter or remove existing intellectual property notices or (iv) violate this Agreement. For the avoidance of all doubt, You expressly agree and accept that Holotech has the sole and final decision in determining what constitutes defamatory, profane or obscene content, child pornography or content otherwise harmful to minors, at its own discretion.
Without prejudice to the provisions governing indemnity herein contained, You hereby accept that You shall indemnify, defend and hold Holotech harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim brought against Holotech by a third party relating to Your User Generated Content (including but not limited to any representations or warranties You make about Your Community Made Content) or Your breach of this Section.
Community Made Content
From time to time, Holotech may publish software, associated guidelines and specifications (“Community Tools”) to allow You to create custom avatars, backgrounds, accessories, text, sounds or other custom items that interoperate or are integrated with the Application (“Community Made Content”).
You may distribute Your Community Made Content to third parties in strict accordance with the specifications that are part of the Community Tools.
You hereby acknowledge and agree that Holotech does not own the copyright to Your own Community Made Content.
For any Community Made Content that You choose to upload on Holotech online servers, You hereby grant Holotech and its affiliates the non-exclusive, irrevocable right to use, modify, create derivative works from, distribute to Holotech’s development partners, broadcast, and otherwise communicate and publicly display Your Community Made Content, and derivative works of Your Community Made Content for development, promotion and marketing purposes. You represent and warrant to Holotech that You have sufficient rights in all Community Made Content to grant Holotech and other affected parties such licenses. For the avoidance of doubt, uploading Community Made Content on Holotech online servers is not automatic and requires deliberate bespoke actions to be taken by You on the Application website.
Importing locally stored Community Made Content data in the Application, or using it in a multiplayer session does not automatically upload Your Community Made Content on Holotech servers.
More rights, including but not limited to the sale and/or distribution of Your Community Made Content to third parties, other than Holotech’s development partners, may be given to Holotech only if they are such stated in a specific licensing agreement signed between You and Holotech. Holotech may assign or sublicense any of the before mentioned rights to third parties in its sole discretion.
Your Community Made Content shall not: (i) infringe any third party intellectual property or other proprietary or publicity/privacy rights, (ii) violate any law or regulation, (iii) be defamatory, profane, obscene, child pornographic or harmful to minors, (iv) contain any viruses, trojan horses, worms, time bombs or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information, (v) alter or remove existing intellectual property notices or (iv) violate this Agreement. For the avoidance of all doubt, You expressly agree and accept that Holotech has the sole and final decision in determining what constitutes defamatory, profane or obscene content, child pornography or content otherwise harmful to minors, at its own discretion.
You hereby acknowledge that Holotech has no support, warranty, indemnification or other obligation or liability with respect to Your Community Made Content or its interaction or use with the Application.
Without prejudice to the provisions governing indemnity herein contained, You hereby accept that You shall indemnify, defend and hold Holotech harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim brought against Holotech by a third party relating to Your Community Made Content (including but not limited to any representations or warranties You make about Your Community Made Content) or Your breach of this Section.
Feedback
As a licensee, You may provide Holotech with Feedback with respect to the Application. For the purposes of this Agreement, “Feedback” shall mean suggestions, comments, ideas, requests for noticeable bugs and all other types of information, including software and code, that You provide, publish, or otherwise communicate directly or indirectly (including Your employees, agents, contractors, or representatives) to Holotech or its agents that relates to the Application.
You agree that while the role You will play in helping Holotech develop better software is helpful, it does not constitute a critical or vital role in the development of the Application such as to entitle You to claims of ownership or rights to receive any other compensation of any kind for Your participation.
You hereby grant Holotech the worldwide, exclusive, transferable, perpetual, irrevocable, royalty-free, fully paid-up right to: (i) make, have made, use, copy, modify, and create derivative works of the Feedback as part of any Holotech product, technology, service, specification or documentation; (ii) publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell and sell, rent, lease or lend copies of the Feedback (and derivative works thereof and improvements thereon); and (iii) sublicense to third parties the foregoing rights, including the right to sub-license to further third parties. If any such rights may not be licensed under the law in Your country of residence, You hereby waive and agree not to assert any such rights.
You represent and warrant that You have sufficient rights in any Feedback that You provide to Holotech to grant Holotech and other affected parties the rights described above. This includes but is not limited to intellectual-property rights and other proprietary or personal rights.
You understand and agree that Holotech is not required to make any use of any Feedback that You provide. You agree that if Holotech makes use of Your Feedback, Holotech is not required to credit or compensate You.
Limited Warranty and Disclaimer
The Application, related software and documentation(s) are provided on an “as is” and “as available” basis with all faults and without warranty of any kind, either express or implied, including, without limitation, any implied warranties of condition, defects, use, merchantability, fitness for a particular purpose or use, or noninfringement.
The entire risk arising out of use or performance of the Application, related software and documentation(s) remains with You.
To the fullest extend permissible under the applicable law, Holotech and Holotech’s licensors do not make and hereby disclaim all warranties and conditions with respect to the Application, either express or implied, including, but not limited to, any and all express, implied or statutory warranties, including implied warranties of condition, uninterrupted use, merchantability, satisfactory quality, fitness for a particular purpose, noninfringement of third party rights, and warranties (if any) arising from a course of dealing, usage, or trade practice.
Holotech and Holotech’s licensors make no warranty that (a) the Application will be uninterrupted, timely, secure, or error-free, (b) the Application will be interoperable or compatible with other software, or (c) the results that may be obtained from the use of the Application will be effective, accurate or reliable.
No oral or written information or advice given by Holotech, Holotech’s representatives or their authorized representative(s) shall create a warranty.
Nothing in this Agreement will prejudice the statutory rights that You may have as a consumer of the Application. Some countries, states, provinces or other jurisdictions do not allow the exclusion of certain warranties or the limitation of liability as stated in this section, so the above terms may not fully apply to You. Instead, in such jurisdictions, the exclusions and limitations below shall apply only to the maximum extent permitted by the laws of such jurisdictions.
Limitation of Liability
To the fullest extent permissible by the applicable law, in no event shall Holotech, its subsidiaries or its affiliates be liable to You for any personal injury, property damage, lost profits, cost of substitute goods or services, loss of data, loss of goodwill, work stoppage, computer failure or malfunction or any form of direct or indirect, special, incidental, consequential or punitive damages from any causes of action arising out of or related to or arising out of or in connection with this Agreement, the Application, related software or the documentation(s), whether arising in tort (including negligence), contract, strict liability or otherwise, whether or not Holotech has been advised of the possibility of such damage.
Certain jurisdictions do not allow the limitation of liability for death, personal injury, fraudulent misrepresentations or certain intentional or negligent acts, or violation of specific statutes, or the limitation of incidental or consequential damages, which imply that some or all of the above limitations of liability may not apply to You.
In no event shall Holotech’s total liability to You for all damages exceed the amount actually paid by You for the Application.
Limitation of Liability is a material term of this Agreement. You agree that the provisions in this Agreement that limit liability are essential terms of this Agreement. The foregoing limitations of liability apply even if any remedies described in this Agreement fail in their essential purpose.
Without prejudice to the above and to the fullest extent of the law Holotech, its licensors, affiliates and subsidiaries shall not be liable for direct or indirect, special, incidental, consequential or punitive damages from any causes of action arising out of Your use of the Application, including any form of expression, verbal or otherwise, User Generated Content, and/or Community Made Content, resulting from any actions You perform or allow to be performed in order to:
Create a false identity for purposes of misleading others;
Defame, abuse, harass, threaten, spam, violate the rights of others;
Publish, transfer or distribute any inappropriate, indecent, obscene, foul or unlawful conduct, including promoting hate speech, religious or political extremism, racism, sexism, homophobia, transphobia or other such discriminatory opinions or historical revisionism;
In addition, You may not create, generate, or make available any User Generated Content or Community Made Content that is illegal or violates or infringes another’s rights, including intellectual property rights or privacy, publicity or moral rights. Holotech reserves the right to take down any form of expression resulting from Your use of the Application, verbal or otherwise, as well as User Generated Content or Community Made Content in its discretion.
Indemnity
This section only applies to the extent permitted by applicable law. If You are prohibited by law from entering into the indemnification obligation below, then You assume, to the fullest extent permitted by law, all liability for all claims, demands, actions, losses, liabilities, and expenses (including attorneys’ fees, costs and expert witnesses’ fees) that are the stated subject matter of the indemnification obligation below.
At Holotech's request, You agree to defend, indemnify and hold harmless Holotech, its subsidiaries, affiliates, contractors, officers, directors, employees, agents, licensors, licensees, distributors, developers, content providers, and other users of the Application, from all damages, losses, liabilities, claims and expenses, including attorneys' fees, arising directly or indirectly from: (i) any claim that, if true, would constitute a breach by You of this Agreement or negligence by You, (ii) any act or omission by You in using the Application, or (iii) any claim of infringement or violation of any third-party intellectual-property rights arising from Holotech’s use of Your User Generated Content or Feedback.
Holotech reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You hereunder, and in such event, You shall have no further obligation to provide indemnification for such matter.
Injunctive Relief
You hereby acknowledge that a breach of this Agreement may cause irreparable injury to Holotech for which monetary damages would not be an adequate remedy and Holotech shall be entitled to seek, without bond, other security, or proof of damages, appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as Holotech may otherwise have available to it under the applicable laws.
Data Collection
The Application may contain functions which process information related to Your use of the Application. Personal data provided to Holotech and/or collected by Holotech in connection with Your installation and use of the Application is collected, used, stored and transmitted in accordance with Holotech’s Privacy Policy. To the extent that anything in this section conflicts with the terms of Holotech’s Privacy Policy, the terms of the Privacy Policy shall control.
If You do not want Holotech to collect, use, store, transmit or display the data described in Holotech’s Privacy Policy, please do not install or use the Application.
Virtual Currency
The Application may allow you to use virtual currency, such as coins, points or similar items that may be earned or obtained through the Application or otherwise purchased by you for legal tender or actual currency, subject to applicable law (“Virtual Currency”). Subject to your compliance with the terms of this Agreement, Holotech hereby grants to you a limited, personal, nontransferable, non-sublicensable, revocable license to use, solely within the Application, Virtual Currency that you have earned, purchased or otherwise obtained in a manner authorized by Holotech.
Except as provided in the foregoing, you will have no right, title or interest in or to any Virtual Currency appearing or originating in the Application, and Holotech reserves the absolute right without any liability to you or any third party, at any time and at its sole discretion, to manage, regulate, control, modify or eliminate Virtual Currency.
All sales of Virtual Currency are final and non-refundable, unless Holotech or the applicable third-party platform decides in its sole and absolute discretion to provide a refund. You agree that in the event that this Agreement is terminated for any reason, you will forfeit all Virtual Currency and Holotech will have no liability to you in connection with that forfeiture.
Dispute Resolution By Binding Arbitration
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
You agree that any and all disputes or claims that have arisen or may arise between You and Holotech, whether arising out of or relating to this Agreement (including any alleged breach thereof), the Application, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this section does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Agreement, You are waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
YOU AND HOLOTECH AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND HOLOTECH AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
Holotech is always interested in resolving disputes amicably and efficiently, and most concerns can be resolved quickly and to Your satisfaction by emailing customer support at [email protected]. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Holotech should be sent to Holotech, Inc., 333 Bryant St, Suite 190, San Francsisco, CA, 94133 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If You and Holotech do not resolve the claim within sixty (60) calendar days after the Notice is received, You or Holotech may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which You or Holotech is entitled.
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, . Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, . If there is any inconsistency between any term of the AAA Rules and any term of this Section, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Section. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless You and Holotech agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
Termination
This Agreement is effective until terminated.
You may terminate this Agreement at any time by (1) deleting the Application from all devices on which You have installed it, (2) deleting your Account linked to the Application, or (3) sending a request to Holotech to disable and delete your Account.
Your rights under this Agreement will terminate immediately and automatically without any notice from Holotech: (i) if You fail to comply with any of the terms and conditions of this Agreement, or (ii) if Holotech terminates this Agreement, at its sole discretion, for any reason or no reason.
Promptly upon termination, You must cease all use of the Application and destroy all copies of the Application in Your possession or control.
Upon termination of this Agreement for any reason, the License granted herein shall immediately terminate and You may no longer exercise any of the rights granted to You by the License.
Except as expressly stated otherwise herein or to the extent required by law, all payments and fees are non-refundable under all circumstances, regardless of whether or not this Agreement has been terminated.
No Implied Waiver
None of the provisions of this Agreement shall be deemed to have been waived by any act, failure to exercise, delay in exercising or acquiescence on the part of Holotech, its agents, or employees, but only by an instrument in writing signed by an authorized officer of Holotech.
No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder.
Entire Agreement
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements and representations, warranties or understandings between You and Holotech. All other communications, proposals, and representations with respect to the subject matter covered by this Agreement are excluded.
Severability
If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remaining provisions of the Agreement shall remain in full force and effect.
Amendments of this Agreement
Holotech may issue an amended Agreement at any time in its discretion by posting the amended Agreement on its website or by providing You with digital access to the amended Agreement through the Application or other means.
If any amendment to this Agreement is not acceptable to You, You may terminate this Agreement by deleting or otherwise disposing of the Application before such amended Agreement becomes effective.
By using the Application after the amended Agreement becomes effective or otherwise indicating Your acceptance of the amended Agreement, You are agreeing to be bound by the terms of the amended Agreement.
Assignment
You may not, without the prior written consent of Holotech (which may be denied at Holotech’s sole discretion), assign, transfer, charge, or sub-contract all or any of Your rights or obligations under this Agreement, and any attempt without that consent will be null and void.
If restrictions on transfer of Your rights and obligations under this Agreement are not enforceable under the law of Your country of residence, then this Agreement will be binding on any transferee of the Application.
Holotech may at any time assign, transfer, charge, or sub-contract all or any of its rights or obligations under this Agreement.
Language
The original of this Agreement is in English. It is the express wish of the parties that this Agreement and all related documents have been drawn up in English. Any translations of this Agreement are provided for reference purposes only.
To the maximum extent permitted, any law or regulation which provides that the language of a contract shall be construed against the drafter will not apply to this Agreement. This paragraph will be interpreted as broadly as applicable law permits.
Governing Law and Jurisdiction
The laws of the State of California, excluding its conflicts-of-law rules, govern this Agreement and/or Your use of the Application and You expressly agree that exclusive jurisdiction for any claim or action arising out of or relating to this Agreement and/or Your use of the Application not subject to arbitration shall be the federal or state courts that govern California, and You expressly consent to the exercise of personal jurisdiction of such courts.
You and Holotech agree to waive any jurisdictional, venue, or inconvenient forum objections to such courts as indicated above, as well as, if applicable, any right to a jury trial.
Please note that Your conduct may also be subject to other local, state, national, and international laws, including international copyright regulations and treaties.
The parties agree that the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980) shall not apply to this License or to any dispute or transaction arising out of this License.
Contact
You may contact Holotech for any questions, complaints or claims at the following address: [email protected]
Live2D
Statement
This application contains Live2D Cubism SDK developed by Live2D Inc. of which the copyrights are held by Live2D Inc. If this application is utilized as a primary element of a business* and its annual sales made directly or indirectly by this application or content produced by this application exceed 20 million JPY, you shall be obliged to execute Publication License Agreement with Live2D Inc. and pay required license fee. You shall also be obliged to immediately notify Live2D Inc. when the annual sales exceed 20 million JPY. Any violation of these obligations means the utilization of Live2D Cubism SDK beyond the scope permitted by Live2D Inc. with regard to this application and the infringement of intellectual property rights of Live2D Inc., and you may receive legal claims from Live2D Inc.
* “Utilizing this application as a primary element of a business” includes but not limited to operating a VTuber streaming business. It does not include streaming video contents for sales promotion.
This Agreement governs Your use of the Holotech services , and all related software, documentation, updates and upgrades that replace or supplement the application and are not distributed with a separate license (together, the “Application”).
By downloading and installing the Application, You consent to be bound by this Agreement. In the event You can bypass installing the Application, then You shall be deemed to have accepted to be bound by this Agreement by copying, downloading, accessing or otherwise using the Application. Furthermore, You accept to be bound by this Agreement every time You enter or re-enter the Application.
PLEASE READ THESE TERMS OF THIS AGREEMENT CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST HOLOTECH ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST HOLOTECH RESOLVED BY A JURY OR IN A COURT OF LAW.
You hereby affirm that You have reached the legal age of majority in Your country of residence, understand and accept the entirety of this Agreement, or, if You are under the legal age of majority in Your country of residence, then Your parent or legal guardian has consented to this Agreement, acting under the parental authority or power of guardianship legally vested in them by law.
By downloading, installing or using the Application, You also acknowledge that You have read and understood to Holotech’s Privacy Policy.
You acknowledge that Holotech has provided You with enough time for reviewing the terms and conditions of this Agreement and those of Holotech’s Privacy Policy before Your acceptance.
If You do not or cannot agree to all of the terms and conditions of this Agreement, then do not download, install or use the Application or promptly delete the Application.
Access
Holotech will provide You access to use the Application as described in this Agreement. Holotech might provide some or all elements of the Application through third party service providers.
You may be required to register an account with Holotech in order to access and use certain features of the Application (an “Account”). If you choose to register for an Account to use the Application, You agree to provide and maintain true, accurate, current and complete information about yourself as prompted by Holotech’s registration form. Registration data and certain other information about you are governed by our Privacy Policy.
You are responsible for maintaining the confidentiality of your Account and password, if any, and are fully responsible for any and all activities that occur under Your Account. You agree to immediately notify Holotech of any unauthorized use of your Account or any other breach of security. Holotech will not be liable for any loss or damage arising from Your failure to comply with this section.
License Grant
Holotech grants You a personal, non-exclusive, non-transferable, non-sublicensable limited right and license to use the Application for Your personal, or limited commercial use (subject to the terms and conditions contained in this Agreement) (the “Basic License”). For an additional fee, Holotech may offer PRO Users (formerly known as VIP Users) a separate License Agreement to permit such PRO Users all rights granted under the Basic License, and also the right to make this Application available for broader commercial use, in accordance with the terms of this Agreement (the “PRO License”, formerly known as "VIP License", and together with the Basic License, each a “License”). For purposes of this section, You qualify as a "PRO User” if You earn more than $500 USD per month from Your User Generated Content or Your Community Made Content, as determined in Holotech’s sole discretion.
The rights that Holotech grants You under the License are subject to the terms of this Agreement, and You may only make use of the License if You comply with all applicable terms.
The term of Your License shall commence on the date that You start to download, install or otherwise use the Application, and shall end upon the termination of the License either by You or by Holotech.
Fees
To the extent the Application or any portion thereof is made available for any fee, You will be required to select a payment plan and provide Holotech information regarding your credit card or other payment instrument. You represent and warrant to Holotech that such information is true and that You are authorized to use the payment instrument. You will promptly update Your Account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur.
Holotech reserve the right to change Holotech’s prices. If Holotech does change prices, Holotech will provide notice of the change through the Application or in email to you, at Holotech’s option, at least thirty (30) days before the change is to take effect. Your continued use of the Application after the price change becomes effective constitutes Your agreement to pay the changed amount. You shall be responsible for all taxes associated with the Application other than U.S. taxes based on Holotech’s net income.
Reservation of Rights
This version of the Application and any related software applications, official avatars or files which may be provided to You to “patch” or “update” the Application, as well as any on-line or electronic documentation relating to the Application, including any and all copies and derivative works of the foregoing and any proprietary and confidential information which may be disclosed to You by Holotech (“Confidential Information”) are the copyrighted work of Holotech.
You acknowledge and agree that You shall have no ownership or other property interest in the Application, its software and documentation, and You further acknowledge and agree that all such rights are and shall forever be owned by and inure to the benefit of Holotech.
The License is limited to the intellectual property rights of Holotech and its licensors in the Application and does not include any rights to other patents or intellectual property. The Application may contain certain third-party licensed materials and licensors of those third-party materials may enforce their rights in the event of any violation of this Agreement by You.
All rights granted to You under this Agreement are granted by express license only and not by sale. No license or other rights shall be created hereunder by implication, estoppel, or otherwise.
Restrictions
This Agreement governs Your use of the Application, all related documentation, as well as any updates and upgrades that replace or supplement the software in any respect and which are not distributed with a separate license. Any use, reproduction or redistribution of the Application not expressly authorized by the terms of this Agreement is expressly prohibited.
Subject to the grant of License herein, You may not, in whole or in part, copy, reproduce, translate, reverse engineer, derive source code, modify, disassemble, decompile, create derivative works based on the Application (in each case, except as expressly permitted herein), or remove any proprietary notices on or in the Application. Failure to comply with the restrictions and limitations contained in this section shall result in the immediate, automatic termination of the license granted hereunder and may subject You to civil and/or criminal penalties.
Furthermore, You agree that You shall not, under any circumstances:
Sell, grant a security interest in or transfer reproductions of the Application, its related software and/or documentation to other parties in any way not expressly authorized herein, nor shall You rent, lease or license the Application;
Sell or disclose to any person or entity other than Holotech any serial key, activation code, or other unique identifier or means of authentication provided to You by Holotech;
Resell or rent the functionality of the Application or its related software to third parties in endeavors that include (but are not limited to) use at a cybercafé, computer gaming center, convention, services marketplace (online or offline) or in any other digital or location-based site except with the express consent of Holotech.
Updates and Patches
You acknowledge and agree that Holotech does not have any maintenance or support obligations with respect to the Application.
At its own discretion, Holotech may deploy or provide patches, updates, or upgrades to the Application that must be installed in order for You to continue to use the Application. This Agreement shall apply to any such updates, upgrades and/or additional features that are not distributed with a separate license or other agreement.
Holotech may update the Application remotely, including, without limitation, the Application and related software residing on Your device(s), without Your knowledge or consent, and You hereby grant to Holotech Your consent to deploy and apply such patches, updates and modifications to the Application.
When using the Application, You may create and save custom content. If upgrades or patches are provided or deployed by Holotech, this content or its format may be reset when a particular build, patch or update completes the testing phase and is made available to You, and access to any previous version(s) of the Application and content therein stored may be ended upon the availability of such updates, upgrades and/or implementation of any additional features, without any prior notice to You from Holotech.
Interaction with Third Party Sites and Services
The Application may allow You to interact with third-party websites, web browsers and web services (“Links”). The Links are not under the control of Holotech and Holotech is not responsible for the content of any Links, including without limitation any link contained in a Link or any changes or updates to a Link. Holotech may provide Links only as a convenience and the inclusion of any Link does not imply endorsement by Holotech of the Link or any association with its operators. You are solely responsible for any consequences of accessing a Link as well as for viewing and abiding by the privacy statements and terms of use posted in connection with those Links. Use of Links is at Your own risk.
Development Versions of the Application
You acknowledge that Holotech may put at Your disposal in-development versions of the Application (each, a “Beta Version”). You may use any Beta Version in accordance with the terms and conditions of this Agreement. Beta Versions may not include all functionality and features accessible as part of the Application. Holotech has the right to terminate a Beta Version at any time for any reason. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, HOLOTECH WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO BETA VERSIONS.
Your use of such in-development versions of the Application does not constitute an employment agreement or offer of such an agreement between You and Holotech.
Holotech does not ask or require You to work a certain number of hours, shifts, etc. as part of Your use of the Application.
Your use of in-development versions of the Application is strictly voluntary and done solely for Your personal enjoyment.
Holotech expects You only to use Your leisure time to participate in this Application and does not expect You to forego other activities, including gainful employment, during the time You spend using such in-development versions of the Application.
You may stop using in-development versions of the Application at any time that You wish.
User Generated Content
By using the Application, You can create and publish audio and video content, that may take the form of:
-Rasterized image files
-Rasterized video files
-Audio or video streams
(Together, “User Generated Content”).
Your User Generated Content can feature one or several of the following:
- Avatars, defined as two-dimensional and/or three-dimensional graphical representations, icons, figures or animations, whether generic or user-personalized, depicting the user, the user’s alter ego or a character;
- Backgrounds, defined as the images, animations or otherwise varied compositions displayed behind or underneath Avatars, whether generic or user-personalized. References to “Backdrops” which may be made in this Agreement or other documents relating or applicable to the Application shall be considered references to Backgrounds;
- Accessories, defined as two-dimensional or three-dimensional graphical representations, figures or animations, whether generic or user-personalized, used to personalize Avatars and/or Backgrounds. References to “Props” which may be made in this Agreement or other documents relating or applicable to the Application shall be considered references to Accessories;
- Audio Assets, defined as sound samples either pre-recorded or generated on-the-fly by the application through capturing and processing microphone input
Audio and video content created by You using exclusively Avatars, Backgrounds, Audio Assets and/or Accessories made available to You within the Application is subject to the provisions of this current Section, without prejudice to any third-party rights which may apply, as herein provided.
Custom Avatars, Backgrounds, Audio Assets and/or Accessories You create using Community Tools or by any other means or methods made available to You by Holotech or its affiliates constitute “Community Made Content”, a different class of content that shall be subject to the provisions of this Agreement provided in the specific “Community Made Content" section below.
In the event that Your User Generated Content combines Avatars, Backgrounds, Audio Assets and/or Accessories made available within the Application or on the Storefront, as well as custom Avatars, Backgrounds and/or Accessories that You create, then Your use of such User Generated Content shall collectively be subject to the provisions governing Community Made Content, as provided below.
You are fully responsible for Your User Generated Content. Furthermore, certain restrictions are applicable to use of such User Generated Content, including:
- The video or audio content created with Application must never be sold or gated from the public behind paywalls, including but not limited to admission-type fees or paid subscriptions, unless specifically approved by Holotech in a separate personalized Agreement or such rights are otherwise expressly granted to you by Holotech in another way; provided, however, that the foregoing restrictions will not apply to content created pursuant to a PRO License (formerly known as a VIP License);
- The use of the audio and video content created with Application is further governed by the following limitations and licenses: Creative Commons Attribution Non-Commercial-Share Alike 4.0 International (CC BY-NC-SA 4.0). Detailed descriptions of the Creative Commons license types can be found in digital format at provided, however, the that foregoing restriction will not apply to audio and video content created pursuant to a PRO License (formerly known as a VIP License);
-The use of the audio and video content created with the Application while using any of third-party licensed Avatars, Backgrounds or Accessories is further governed by the licensing terms listed in the original asset description text within the Application and on the Storefront. You must verify the nature of these limitations and comply with them;
- When creating content by using community-created assets (Avatars, Backgrounds or Accessories), additional limitations on allowed content use or ownership may apply on a case by case basis, as dictated by their creators. You must verify the nature of these limitations and comply with them.
- In the case of overlaps between licenses governing different Avatars, Backgrounds or Accessories used in creating content (by using a mix of such Avatars, Backgrounds and/or Accessories), the most restrictive license governing any such Avatars, Backgrounds or Accessories shall apply.
You hereby grant Holotech a non-exclusive, fully-paid, royalty-free, irrevocable, perpetual, transferable, and sublicensable license to use, copy, modify, adapt, distribute, prepare derivative works based on, publicly perform, publicly display, make, have made, use, sell, offer to sell, import, and otherwise exploit Your User Generated Content for any purposes, for all current and future methods and forms of exploitation in any country. You may not create, generate, or make available any User Generated Content to which You do not have the right to grant Holotech such license.
Your User Generated Content shall not: (i) infringe any third party intellectual property or other proprietary or publicity/privacy rights, (ii) violate any law or regulation, (iii) be defamatory, profane, obscene, child pornographic or harmful to minors, (iv) contain any viruses, trojan horses, worms, time bombs or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information, (v) alter or remove existing intellectual property notices or (iv) violate this Agreement. For the avoidance of all doubt, You expressly agree and accept that Holotech has the sole and final decision in determining what constitutes defamatory, profane or obscene content, child pornography or content otherwise harmful to minors, at its own discretion.
Without prejudice to the provisions governing indemnity herein contained, You hereby accept that You shall indemnify, defend and hold Holotech harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim brought against Holotech by a third party relating to Your User Generated Content (including but not limited to any representations or warranties You make about Your Community Made Content) or Your breach of this Section.
Community Made Content
From time to time, Holotech may publish software, associated guidelines and specifications (“Community Tools”) to allow You to create custom avatars, backgrounds, accessories, text, sounds or other custom items that interoperate or are integrated with the Application (“Community Made Content”).
You may distribute Your Community Made Content to third parties in strict accordance with the specifications that are part of the Community Tools.
You hereby acknowledge and agree that Holotech does not own the copyright to Your own Community Made Content.
For any Community Made Content that You choose to upload on Holotech online servers, You hereby grant Holotech and its affiliates the non-exclusive, irrevocable right to use, modify, create derivative works from, distribute to Holotech’s development partners, broadcast, and otherwise communicate and publicly display Your Community Made Content, and derivative works of Your Community Made Content for development, promotion and marketing purposes. You represent and warrant to Holotech that You have sufficient rights in all Community Made Content to grant Holotech and other affected parties such licenses. For the avoidance of doubt, uploading Community Made Content on Holotech online servers is not automatic and requires deliberate bespoke actions to be taken by You on the Application website.
Importing locally stored Community Made Content data in the Application, or using it in a multiplayer session does not automatically upload Your Community Made Content on Holotech servers.
More rights, including but not limited to the sale and/or distribution of Your Community Made Content to third parties, other than Holotech’s development partners, may be given to Holotech only if they are such stated in a specific licensing agreement signed between You and Holotech. Holotech may assign or sublicense any of the before mentioned rights to third parties in its sole discretion.
Your Community Made Content shall not: (i) infringe any third party intellectual property or other proprietary or publicity/privacy rights, (ii) violate any law or regulation, (iii) be defamatory, profane, obscene, child pornographic or harmful to minors, (iv) contain any viruses, trojan horses, worms, time bombs or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information, (v) alter or remove existing intellectual property notices or (iv) violate this Agreement. For the avoidance of all doubt, You expressly agree and accept that Holotech has the sole and final decision in determining what constitutes defamatory, profane or obscene content, child pornography or content otherwise harmful to minors, at its own discretion.
You hereby acknowledge that Holotech has no support, warranty, indemnification or other obligation or liability with respect to Your Community Made Content or its interaction or use with the Application.
Without prejudice to the provisions governing indemnity herein contained, You hereby accept that You shall indemnify, defend and hold Holotech harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim brought against Holotech by a third party relating to Your Community Made Content (including but not limited to any representations or warranties You make about Your Community Made Content) or Your breach of this Section.
Feedback
As a licensee, You may provide Holotech with Feedback with respect to the Application. For the purposes of this Agreement, “Feedback” shall mean suggestions, comments, ideas, requests for noticeable bugs and all other types of information, including software and code, that You provide, publish, or otherwise communicate directly or indirectly (including Your employees, agents, contractors, or representatives) to Holotech or its agents that relates to the Application.
You agree that while the role You will play in helping Holotech develop better software is helpful, it does not constitute a critical or vital role in the development of the Application such as to entitle You to claims of ownership or rights to receive any other compensation of any kind for Your participation.
You hereby grant Holotech the worldwide, exclusive, transferable, perpetual, irrevocable, royalty-free, fully paid-up right to: (i) make, have made, use, copy, modify, and create derivative works of the Feedback as part of any Holotech product, technology, service, specification or documentation; (ii) publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell and sell, rent, lease or lend copies of the Feedback (and derivative works thereof and improvements thereon); and (iii) sublicense to third parties the foregoing rights, including the right to sub-license to further third parties. If any such rights may not be licensed under the law in Your country of residence, You hereby waive and agree not to assert any such rights.
You represent and warrant that You have sufficient rights in any Feedback that You provide to Holotech to grant Holotech and other affected parties the rights described above. This includes but is not limited to intellectual-property rights and other proprietary or personal rights.
You understand and agree that Holotech is not required to make any use of any Feedback that You provide. You agree that if Holotech makes use of Your Feedback, Holotech is not required to credit or compensate You.
Limited Warranty and Disclaimer
The Application, related software and documentation(s) are provided on an “as is” and “as available” basis with all faults and without warranty of any kind, either express or implied, including, without limitation, any implied warranties of condition, defects, use, merchantability, fitness for a particular purpose or use, or noninfringement.
The entire risk arising out of use or performance of the Application, related software and documentation(s) remains with You.
To the fullest extend permissible under the applicable law, Holotech and Holotech’s licensors do not make and hereby disclaim all warranties and conditions with respect to the Application, either express or implied, including, but not limited to, any and all express, implied or statutory warranties, including implied warranties of condition, uninterrupted use, merchantability, satisfactory quality, fitness for a particular purpose, noninfringement of third party rights, and warranties (if any) arising from a course of dealing, usage, or trade practice.
Holotech and Holotech’s licensors make no warranty that (a) the Application will be uninterrupted, timely, secure, or error-free, (b) the Application will be interoperable or compatible with other software, or (c) the results that may be obtained from the use of the Application will be effective, accurate or reliable.
No oral or written information or advice given by Holotech, Holotech’s representatives or their authorized representative(s) shall create a warranty.
Nothing in this Agreement will prejudice the statutory rights that You may have as a consumer of the Application. Some countries, states, provinces or other jurisdictions do not allow the exclusion of certain warranties or the limitation of liability as stated in this section, so the above terms may not fully apply to You. Instead, in such jurisdictions, the exclusions and limitations below shall apply only to the maximum extent permitted by the laws of such jurisdictions.
Limitation of Liability
To the fullest extent permissible by the applicable law, in no event shall Holotech, its subsidiaries or its affiliates be liable to You for any personal injury, property damage, lost profits, cost of substitute goods or services, loss of data, loss of goodwill, work stoppage, computer failure or malfunction or any form of direct or indirect, special, incidental, consequential or punitive damages from any causes of action arising out of or related to or arising out of or in connection with this Agreement, the Application, related software or the documentation(s), whether arising in tort (including negligence), contract, strict liability or otherwise, whether or not Holotech has been advised of the possibility of such damage.
Certain jurisdictions do not allow the limitation of liability for death, personal injury, fraudulent misrepresentations or certain intentional or negligent acts, or violation of specific statutes, or the limitation of incidental or consequential damages, which imply that some or all of the above limitations of liability may not apply to You.
In no event shall Holotech’s total liability to You for all damages exceed the amount actually paid by You for the Application.
Limitation of Liability is a material term of this Agreement. You agree that the provisions in this Agreement that limit liability are essential terms of this Agreement. The foregoing limitations of liability apply even if any remedies described in this Agreement fail in their essential purpose.
Without prejudice to the above and to the fullest extent of the law Holotech, its licensors, affiliates and subsidiaries shall not be liable for direct or indirect, special, incidental, consequential or punitive damages from any causes of action arising out of Your use of the Application, including any form of expression, verbal or otherwise, User Generated Content, and/or Community Made Content, resulting from any actions You perform or allow to be performed in order to:
Create a false identity for purposes of misleading others;
Defame, abuse, harass, threaten, spam, violate the rights of others;
Publish, transfer or distribute any inappropriate, indecent, obscene, foul or unlawful conduct, including promoting hate speech, religious or political extremism, racism, sexism, homophobia, transphobia or other such discriminatory opinions or historical revisionism;
In addition, You may not create, generate, or make available any User Generated Content or Community Made Content that is illegal or violates or infringes another’s rights, including intellectual property rights or privacy, publicity or moral rights. Holotech reserves the right to take down any form of expression resulting from Your use of the Application, verbal or otherwise, as well as User Generated Content or Community Made Content in its discretion.
Indemnity
This section only applies to the extent permitted by applicable law. If You are prohibited by law from entering into the indemnification obligation below, then You assume, to the fullest extent permitted by law, all liability for all claims, demands, actions, losses, liabilities, and expenses (including attorneys’ fees, costs and expert witnesses’ fees) that are the stated subject matter of the indemnification obligation below.
At Holotech's request, You agree to defend, indemnify and hold harmless Holotech, its subsidiaries, affiliates, contractors, officers, directors, employees, agents, licensors, licensees, distributors, developers, content providers, and other users of the Application, from all damages, losses, liabilities, claims and expenses, including attorneys' fees, arising directly or indirectly from: (i) any claim that, if true, would constitute a breach by You of this Agreement or negligence by You, (ii) any act or omission by You in using the Application, or (iii) any claim of infringement or violation of any third-party intellectual-property rights arising from Holotech’s use of Your User Generated Content or Feedback.
Holotech reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You hereunder, and in such event, You shall have no further obligation to provide indemnification for such matter.
Injunctive Relief
You hereby acknowledge that a breach of this Agreement may cause irreparable injury to Holotech for which monetary damages would not be an adequate remedy and Holotech shall be entitled to seek, without bond, other security, or proof of damages, appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as Holotech may otherwise have available to it under the applicable laws.
Data Collection
The Application may contain functions which process information related to Your use of the Application. Personal data provided to Holotech and/or collected by Holotech in connection with Your installation and use of the Application is collected, used, stored and transmitted in accordance with Holotech’s Privacy Policy. To the extent that anything in this section conflicts with the terms of Holotech’s Privacy Policy, the terms of the Privacy Policy shall control.
If You do not want Holotech to collect, use, store, transmit or display the data described in Holotech’s Privacy Policy, please do not install or use the Application.
Virtual Currency
The Application may allow you to use virtual currency, such as coins, points or similar items that may be earned or obtained through the Application or otherwise purchased by you for legal tender or actual currency, subject to applicable law (“Virtual Currency”). Subject to your compliance with the terms of this Agreement, Holotech hereby grants to you a limited, personal, nontransferable, non-sublicensable, revocable license to use, solely within the Application, Virtual Currency that you have earned, purchased or otherwise obtained in a manner authorized by Holotech.
Except as provided in the foregoing, you will have no right, title or interest in or to any Virtual Currency appearing or originating in the Application, and Holotech reserves the absolute right without any liability to you or any third party, at any time and at its sole discretion, to manage, regulate, control, modify or eliminate Virtual Currency.
All sales of Virtual Currency are final and non-refundable, unless Holotech or the applicable third-party platform decides in its sole and absolute discretion to provide a refund. You agree that in the event that this Agreement is terminated for any reason, you will forfeit all Virtual Currency and Holotech will have no liability to you in connection with that forfeiture.
Dispute Resolution By Binding Arbitration
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
You agree that any and all disputes or claims that have arisen or may arise between You and Holotech, whether arising out of or relating to this Agreement (including any alleged breach thereof), the Application, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this section does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Agreement, You are waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
YOU AND HOLOTECH AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND HOLOTECH AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
Holotech is always interested in resolving disputes amicably and efficiently, and most concerns can be resolved quickly and to Your satisfaction by emailing customer support at [email protected]. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Holotech should be sent to Holotech, Inc., 333 Bryant St, Suite 190, San Francsisco, CA, 94133 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If You and Holotech do not resolve the claim within sixty (60) calendar days after the Notice is received, You or Holotech may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which You or Holotech is entitled.
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, . Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, . If there is any inconsistency between any term of the AAA Rules and any term of this Section, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Section. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless You and Holotech agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
Termination
This Agreement is effective until terminated.
You may terminate this Agreement at any time by (1) deleting the Application from all devices on which You have installed it, (2) deleting your Account linked to the Application, or (3) sending a request to Holotech to disable and delete your Account.
Your rights under this Agreement will terminate immediately and automatically without any notice from Holotech: (i) if You fail to comply with any of the terms and conditions of this Agreement, or (ii) if Holotech terminates this Agreement, at its sole discretion, for any reason or no reason.
Promptly upon termination, You must cease all use of the Application and destroy all copies of the Application in Your possession or control.
Upon termination of this Agreement for any reason, the License granted herein shall immediately terminate and You may no longer exercise any of the rights granted to You by the License.
Except as expressly stated otherwise herein or to the extent required by law, all payments and fees are non-refundable under all circumstances, regardless of whether or not this Agreement has been terminated.
No Implied Waiver
None of the provisions of this Agreement shall be deemed to have been waived by any act, failure to exercise, delay in exercising or acquiescence on the part of Holotech, its agents, or employees, but only by an instrument in writing signed by an authorized officer of Holotech.
No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder.
Entire Agreement
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements and representations, warranties or understandings between You and Holotech. All other communications, proposals, and representations with respect to the subject matter covered by this Agreement are excluded.
Severability
If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remaining provisions of the Agreement shall remain in full force and effect.
Amendments of this Agreement
Holotech may issue an amended Agreement at any time in its discretion by posting the amended Agreement on its website or by providing You with digital access to the amended Agreement through the Application or other means.
If any amendment to this Agreement is not acceptable to You, You may terminate this Agreement by deleting or otherwise disposing of the Application before such amended Agreement becomes effective.
By using the Application after the amended Agreement becomes effective or otherwise indicating Your acceptance of the amended Agreement, You are agreeing to be bound by the terms of the amended Agreement.
Assignment
You may not, without the prior written consent of Holotech (which may be denied at Holotech’s sole discretion), assign, transfer, charge, or sub-contract all or any of Your rights or obligations under this Agreement, and any attempt without that consent will be null and void.
If restrictions on transfer of Your rights and obligations under this Agreement are not enforceable under the law of Your country of residence, then this Agreement will be binding on any transferee of the Application.
Holotech may at any time assign, transfer, charge, or sub-contract all or any of its rights or obligations under this Agreement.
Language
The original of this Agreement is in English. It is the express wish of the parties that this Agreement and all related documents have been drawn up in English. Any translations of this Agreement are provided for reference purposes only.
To the maximum extent permitted, any law or regulation which provides that the language of a contract shall be construed against the drafter will not apply to this Agreement. This paragraph will be interpreted as broadly as applicable law permits.
Governing Law and Jurisdiction
The laws of the State of California, excluding its conflicts-of-law rules, govern this Agreement and/or Your use of the Application and You expressly agree that exclusive jurisdiction for any claim or action arising out of or relating to this Agreement and/or Your use of the Application not subject to arbitration shall be the federal or state courts that govern California, and You expressly consent to the exercise of personal jurisdiction of such courts.
You and Holotech agree to waive any jurisdictional, venue, or inconvenient forum objections to such courts as indicated above, as well as, if applicable, any right to a jury trial.
Please note that Your conduct may also be subject to other local, state, national, and international laws, including international copyright regulations and treaties.
The parties agree that the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980) shall not apply to this License or to any dispute or transaction arising out of this License.
Contact
You may contact Holotech for any questions, complaints or claims at the following address: [email protected]
Live2D
Statement
This application contains Live2D Cubism SDK developed by Live2D Inc. of which the copyrights are held by Live2D Inc. If this application is utilized as a primary element of a business* and its annual sales made directly or indirectly by this application or content produced by this application exceed 20 million JPY, you shall be obliged to execute Publication License Agreement with Live2D Inc. and pay required license fee. You shall also be obliged to immediately notify Live2D Inc. when the annual sales exceed 20 million JPY. Any violation of these obligations means the utilization of Live2D Cubism SDK beyond the scope permitted by Live2D Inc. with regard to this application and the infringement of intellectual property rights of Live2D Inc., and you may receive legal claims from Live2D Inc.
* “Utilizing this application as a primary element of a business” includes but not limited to operating a VTuber streaming business. It does not include streaming video contents for sales promotion.