| Language: |
Electronauts Terms of Use Agreement
Last Updated: July 18, 2018
PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY. BY ACCESSING OR USING THIS WEBSITE OR ANY OTHER WEBSITES OF SURVIOS, INC. (COLLECTIVELY, THE “WEBSITE”), DOWNLOADING, OR USING THIS GAME (“APPLICATION”) IN ANY WAY (WHETHER THROUGH THE WEBSITE, STEAM, A COMMERCIAL ARCADE, OR A THIRD PARTY SERVICE, SUCH AS PLAYSTATION), INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE APPLICATION (EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES”) BY SURVIOS, INC. (“SURVIOS”) CLICKING ON THE “I ACCEPT” BUTTON, OR COMPLETING THE REGISTRATION PROCESS, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH SURVIOS, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THE TERMS OF USE. IF YOU HAVE BEEN SEPARATELY APPROVED BY SURVIOS IN WRITING TO USE THE SERVICE FOR COMMERCIAL PURPOSES, YOU FURTHER REPRESENT THAT YOU ARE THE OWNER, OPERATOR, OR AUTHORIZED REPRESENTATIVE OF SUCH APPROVED PHYSICAL ESTABLISHMENT CONTAINING ONE (1) OR MORE VIRTUAL REALITY EXPERIENCES OR GAMES THAT CAN BE PLAYED BY CUSTOMERS FOR A FEE (“VR ARCADE”). IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THIS APPLICATION OR THE SERVICES.
THE TERMS OF USE INCLUDE A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS, AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES.
THE TERMS OF USE LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE
PLEASE READ THE HEALTH AND SAFETY WARNINGS IN SECTION 5 BELOW, ESPECIALLY IF YOU ARE PREGNANT, ELDERLY, HAVE PRE-EXISTING BINOCULAR VISION ABNORMALTIES OR PSYCHIATRIC DISORDERS, OR SUFFER FROM A HEART CONDITION OR OTHER SERIOUS MEDICAL CONDITION.
In using the Service, you may be required to provide Survios with certain personally identifiable information, retention and use of which are subject to Survios’s Privacy Policy (the “Privacy Policy”), which is incorporated herein by reference and can be found at [INSERT PRIVACY POLICY URL].
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Terms.”
1. Updates and Modifications
1.1 Changes to Terms. PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY THE SURVIOS IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Survios will make a new copy of the Terms of Use available at the Website and within the Application and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website or within the Application. We will also update the “Last Updated” date at the top of the Terms of Use. If we make any material changes, and you have registered with us to create an Account (as defined in Section 2.2 below) we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms. Any changes to the Terms will be effective immediately for new Users of the Website, the Application and/ or Services and will be effective thirty (30) days after posting notice of such changes on the Website for existing Users, provided that any material changes shall be effective for Users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes to Registered Users (defined in Section 2.2 below). Survios may require you to provide consent to the updated Terms in a specified manner before further use of the Website, the Application and/ or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website, the Application and/or the Services. Otherwise, your continued use of the Website, the Application and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
1.2 Modifications to Services. You understand that the Application and Services are evolving. As such, Survios also reserves the right, at its discretion, to change, modify, update, suspend, restrict, or alter your access to any features or parts of the Application or Service, and may require that you download and install updates to the Service, at any time, without notice or liability to you. You also understand and agree that any such changes or updates to the Application might change the system specifications necessary to use the Application, and in such a case, you, and not Survios, are responsible for purchasing any necessary additional software and/or hardware in order to access and use the Application. You acknowledge that when an upgrade is available, previous versions of the Application may cease to be available or no longer be supported by Survios.
2. Use of Services
2.1. Grant of a Limited License to Use the Service
2.1.1 Application License. The Website, Application, the Services and the information and content available therein (collectively, the “Survios Properties”) are protected by copyright laws throughout the world. Subject to your agreement, and continuing compliance with these Terms, and any other relevant Survios policies, Survios grants you a personal, non-exclusive, non-transferable, non-sublicensable, revocable limited license subject to the limitations below to download, install and use a copy of the Application on a single computer that you own or control and to run such copy of the Application solely for your own individual, non-commercial, entertainment purposes only, unless you are a VR Arcade. You agree not to use the Service for any other purpose. You may not sell, copy, exchange, transfer, assign or otherwise distribute anything you copy, create, buy or derive from the Application, unless you are expressly permitted by Survios.
2.1.2 Commercial Application License for VR Arcades. To the extent you have been identified and approved as a VR Arcade by Survios, subject to your agreement and continuing compliance with these Terms, and any other relevant Survios policies, Survios grants you a non-exclusive, non-transferable, non-sublicensable, revocable limited license subject to the limitations below to (a) download, install and use a copy of the Application on a single computer or other authorized device that you own or control and to run such copy of the Application at the VR Arcade for the purposes of making such Application available to customers of the VR Arcade (“End Users”); and (b) use Survios’ trademarks, trade names, logos, designs, artwork, and marketing materials, created and provided by Survios for and used with each Application for the sole purpose of selling, advertising, publicizing, promoting, and making available each application at the VR Arcade. You agree not to use the Service for any other purpose. You may not sell, copy, exchange, transfer, assign or otherwise distribute anything you copy, create, buy or derive from the Application, unless you are expressly permitted by Survios.
2.1.3 Necessary Equipment. The Service may require an internet connection to access internet-based features, authenticate the Service, or perform other functions. You acknowledge that you may be charged by your service provider, and shall be responsible for any such charges, for internet access. Certain hardware may also be required to access certain features and functionality of the Service. You are solely responsible for obtaining all hardware necessary to use the Service.
2.2. Account
(a) Account Registration. In order to access certain features of the Survios Properties, or with respect to operators of VR Arcades, in order to make an Application available to End Users, you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a user of the Survios Properties (“User”) who has registered an account on the Application (“Account”), or has a valid account on the Third Party Service (as defined below) through which the User has connected to the Services (each such account, a “Third-Party Account”).
(b) Steam. You acknowledge and agree that Survios may make the Application available to you through the digital distribution platform, STEAM®, which is owned by Valve Corporation (“STEAM®”). Accordingly, you may need a STEAM® account to activate the license granted in Section 2.1.1, and in such event, your use of an Application will be subject to the STEAM® Subscriber Agreement and/or Terms of Service, as then-currently in effect (the “STEAM® Terms”). Survios makes no representation or warranty to you that your use of an Application is in compliance with the STEAM® Terms.
(c) Third Party Accounts. You may also link your Account with certain third party services (each, a “Third Party Service”) by either (i) providing your Third Party Account login information to us; or (ii) allowing us to access your Third Party Account, if permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to us and/or grant us access to your Third Party Account without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating us to pay any fees or making us subject to any usage limitations imposed by such third party service providers. You have the ability to disable the connection between your Account and your Third Party Accounts at any time by accessing the “Settings” section of the App or Website. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE SOCIAL NETWORKING SERVICE AND OTHER SOFTWARE APPLICATION PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH SOCIAL NETWORKING SERVICE AND SOFTWARE APPLICATION PROVIDERS.
(d) Registration Data. In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using the Survios Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account, including, with respect to operators of VR Arcades, all activities of End Users. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Survios Properties by minors, including with respect to operators of VR Arcades, any End User minors. You may not share your Account or password with anyone, and you agree to (1) notify Survios immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Survios has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Survios has the right to suspend or terminate your Account and refuse any and all current or future use of the Survios Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform or SNS at any given time. Survios reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Survios Properties if you have been previously removed by Survios, or if you have been previously banned from any of the Survios Properties.
2.3. Rules of Conduct. Any use of the Service in violation of these limitations set out in this Section is strictly prohibited, can result in the immediate revocation of your license and may subject you to liability for violations of law. Survios reserves the right to determine what conduct it considers to be in violation of the rules of use or otherwise outside the intent or spirit of these Terms or the Service itself. Survios reserves the right to take action as a result, which may include terminating your Account and prohibiting you from using the Service. Such actionable violations are set forth in the following rules where you agree that you will not, under any circumstances:
(a) Engage in any act that Survios deems to be in conflict with the spirit or intent of the Survios Properties or make improper use of Survios’s support services;
(b) Use cheats, exploits, automation software, bots, hacks, mods or any unauthorized third-party software, code or other device designed to modify or interfere with the Survios Properties, any Survios game or any Survios game experience or, without Survios’s express written consent, modify or cause to be modified any files that are a part of the Service or any Survios game;
(c) Disrupt, overburden, or aid or assist in the disruption or overburdening of any computer or server (“Server”) used to offer or support the Service or any other Survios game environment;
(d) Institute, assist, or become involved in any type of attack, including, but not limited to, distribution of a virus, denial of service attacks upon the Survios Properties, or other attempts to disrupt the Service or any other person’s use or enjoyment of the Service;
(e) Attempt to gain unauthorized access to the Survios Properties, Accounts registered to other users, or to the computers, Servers, or networks connected to the Service by any means other than the user interface provided by Survios, including, but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device, or software that is part of the Survios Properties;
(f) Post any content or information that is: abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable, offensive, a violation of the rights of any third party; or contains nudity, excessive violence, offensive subject matter, links to such content or links to content not created by Survios.
(g) Attempt to, or harass, abuse, or harm, or advocate or incite harassment, abuse, or harm of another person, group, including, but not limited to, Survios employees;
(h) Make available through the Survios Properties any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity, or other right of any person or entity or impersonates any other person, including, but not limited to, Survios employees;
(i) Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the Survios Properties or any Survios game, or to obtain any information from the Survios Properties or any Survios game using any method not expressly permitted by Survios, except to the extent that such activities may not be prohibited by law, and in such circumstances provided that the information you obtain during such activities is:
(i) only used for the purpose of achieving the inter-operability of the Survios Properties with another software program;
(ii) not disclosed or communicated to any third party without Survios’s prior written consent; and
(iii) not used to create any software that is the same or similar to the Survios Properties.
(j) Solicit or attempt to solicit personal information from other users of the Survios Properties or any Survios game or collect or post anyone’s private information, including, but not limited to, personally identifiable information (whether in text, image or video form), identification documents, or financial information through the Service;
(k) Use the Survios Properties in any way that could be considered illegal or immoral, which in some jurisdictions (including the United States) would include gambling or wagering;
(l) Breach any technology control or export laws and regulations that apply to the technology used or supported by the Survios Properties;
(m) Upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes” or any other form of solicitation;
(n) Unless you are a VR Arcade, use the Survios Properties for any commercial purpose, including, but not limited to, communicating or facilitating any commercial advertisement or solicitation; or
(o) Unless you are a VR Arcade, and then only in accordance with your existing license agreement, reproduce, duplicate, copy, sell, trade, resell, or exploit for any commercial purpose, any portion of the Survios Properties (including your Account), or access to or use of the Survios Properties.
(p) record, film, or otherwise duplicate or copy any content on the Services, including any Remixes.
2.4. End User Terms of Service. If you are the operator of an approved VR Arcade, prior to granting any End User access to the Services, you will cause such End User to sign a copy of or click to agree to these Terms. You will use commercially reasonable efforts to enforce these Terms against the End Users, including, without limitation, terminating an End User’s use of the Services at the VR Arcade as a result of such End User’s breach of these Terms.
3. Intellectual Property.
(a) Stem Files. When you register for an Account, we make available for your use stem files of original audio recordings (“Stems”) for the production of new sound recording remixes based on such Stems (“Remixes”). You acknowledge and agree that you do not own the Stems. All right, title, and interest in and to the Stems are owned by the artists and/or composers from whom we licensed such Stems. Your rights to use the Stems are solely limited to use in connection with your creation of Remixes. You have no right to use the Stems outside of the Survios Properties or for any other use, except to create Remixes
(b) Remixes.
(i) You acknowledge and agree that Survios has the unrestricted, assignable, sublicensable, right throughout the universe to use and otherwise exploit (including commercially) all Remixes you create through the Service, through any media and formats now known or hereafter developed, for the purposes of (i) advertising, marketing, and promoting Survios and the Survios Properties; (ii) sharing such Remixes with third parties, including Third Party Services and other partner and affiliate websites and services; and (iii) using such Remixes on and through the Service, including but not limited to, duplicating (e.g. as audio carrier, download); downloading; reproducing (and making mechanical reproductions of the musical works embodied in such sound recordings); distributing; broadcasting (e.g. radio, television); publicly performing (and the musical works embodied therein); storing in databases; streaming, downloading, and otherwise making available online (e.g. through the Internet, Mobile Networks, etc.); and editing, all on a royalty-free basis. You hereby acknowledge and agree that you shall have no right in or to the Remixes you create and may not, under any circumstances, copy, reproduce, record, duplicate, share, distribute, or otherwise use the Remixes, or use the Remixes outside the Survios Properties.
(ii) To the extent that a music public performance license is required with respect to the performance of any Remixes via the Services at a VR Arcade, including by any End Users, the obligation to (i) obtain, secure and maintain all necessary authorizations from BMI, ASCAP and SESAC (or any other applicable performance rights organization) for the performance of such Remixes via the Services to the extent that such authorizations are available from BMI, ASCAP, SESAC and/or other applicable performance rights organization on a blanket license basis, and (ii) timely pay all licensing fees related thereto (collectively, “Music Performance Fees”), as between Survios and you, as the operator of a VR Arcade, shall belong to you.
(c) Waiver of Moral Rights. Except as prohibited by law, you waive any rights of attribution and/or any moral rights you may have in the Remixes, regardless of whether the Remixes are altered or changed in any manner.
(d) Ownership of Other Content. You agree that you have no right or title in or to any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials, including but not limited to Stems and Remixes (“Content”) that appears on or in the Survios Properties, including, but not limited to, the virtual goods or currency appearing or originating in any Survios game, whether earned in a game or purchased from Survios, or any other attributes associated with an Account or stored on or in the Survios Properties. Survios prohibits and does not recognize any purported transfers of virtual property effectuated outside the Survios Properties, or the purported sale, lease, gift or trade in the “real world” of anything that appears or originates in the Survios Properties. Accordingly, you may not trade, sell, or attempt to sell in-game items or currency for “real” money, or exchange those items or currency for value of any kind outside the game. Any such transfer or attempted transfer is prohibited and void, and will subject your Account to termination.
(g) Survios Intellectual Property. You agree that Survios and its suppliers own all rights, title and interest in the Survios Properties (including but not limited to, the remixing engine, and any games, titles, computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, in-game chat transcripts, character profile information, recordings of games played using a Survios game client, and the Survios game clients and server software). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Application, the Services, or the Survios Properties. Survios’s name, stylized “S”, and other related graphics, logos, service marks and trade names used on or in connection with the Survios Properties or in connection with the Services are the trademarks of Survios and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Survios Properties are the property of their respective owners.
4. Indemnification. You agree to indemnify and hold Survios, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Survios Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) (collectively “Losses”) relating to or arising out of: (a) Remixes you create; (b) any claim for performance or other royalties by a third party, including a PRO, in connection with Survios’ use or exploitation, or a Third Party Service’s use or exploitation, of Remixes you create (and, with respect to operators of VR Arcades, the VR Arcade’s use or exploitation of such Remixes); (c) your use of, or inability to use, the Survios Properties; (d) your violation of these Terms; (e) your violation of any rights of another party, including any Users; or (f) your violation of any applicable laws, rules or regulations. Survios reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Survios in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the Survios Properties.
5. Health and Safety Warnings. In the event you use a virtual reality headset in connection with your use of or participation in the Application (a “Headset”), please read the warnings in this Section 5 below carefully before using the Headset or the Application to reduce the risk of personal injury, discomfort or property damage. By using the Service, you represent and warrant that you have read and understand these warnings and instructions. If you are the operator of an approved VR Arcade, in the event you make one (1) or more Headsets available in connection with your provision of the Services to End Users at the VR Arcade, you shall remain solely liable for any injury, death, or property damage incurred by an End User in connection with such Headset. We may update or revise these warnings and instructions, so please review them periodically.
5.1 Before Using the Headset. Review the hardware and software recommendations for use of the Headset. Your Headset and the Application are not designed for use with any unauthorized device, accessory and/or software. Use of an unauthorized device, accessory and/or software may result in injury to you or others, may cause performance issues or damage to your system and related services. Before using the Headset, please read and follow all setup and operating instructions provided by the manufacturer of the Headset. People who are prone to motion sickness in the real world may have an heightened risk of experiencing discomfort while using a Headset in connection with the Application. Such individuals should take extra care to read and following these warnings carefully. Survios recommends seeing a doctor before using the Headset in connection with the Application if you are pregnant, elderly, have pre-existing binocular vision abnormalities or psychiatric disorders, or suffer from a heart condition or other serious medical condition.
5.2 General Instructions and Precautions. USE ONLY IN A SAFE ENVIRONMENT. If you are the operator of a VR Arcade, you will provide a safe environment in which End Users may use the Headset and Application. The use of Headsets distracts you from and completely blocks your view of your actual surroundings. Always be aware of your surroundings when using a Headset and remain seated at all times. Take special care to ensure that you are not near other people, objects, stairs, balconies, windows, furniture, or other items that you can bump into or knock down when using – or immediately after using – a Headset. Do not handle sharp or otherwise dangerous objects while using a Headset. Take at least a 10 to 15 minute break every 30 minutes, even if you do not think you need it. Each person is different, so take more frequent and longer breaks if you feel discomfort. Listening to sound at high volumes can cause irreparable damage to your hearing. Background noise, as well as continued exposure to high volume levels, can make sounds seem quieter than they actually are. Due to the immersive nature of the virtual reality experience in the Application, do not use a Headset with the sound at high volume so that you can maintain awareness of your surroundings and reduce the risk of hearing damage.
5.3 Seizures. Some people may have severe dizziness, seizures, epileptic seizures or blackouts triggered by light flashes or patterns, and this may occur while they are watching TV, playing video games or experiencing virtual reality, even if they have never had a seizure or blackout before or have no history of seizures or epilepsy. Such seizures are more common in children and young people under the age of 20. ANYONE WHO HAS HAD A SEIZURE, LOSS OF AWARENESS, OR OTHER SYMPTOM LINKED TO AN EPILEPTIC CONDITION SHOULD SEE A DOCTOR BEFORE USING A HEADSET IN CONNECTION WITH THE APPLICATION.
5.4 Discomfort. Immediately discontinue use of your Headset when using the Application if anyone using the Headset experiences any of the following symptoms: seizures; loss of awareness; eye strain; eye or muscle twitching; involuntary movements; altered, blurred or double vision or other visual abnormalities; dizziness; disorientation; impaired balance; impaired hand-eye coordination; excessive sweating; increased salivation; nausea; lightheadedness; discomfort or pain in the head or eyes; fatigue; or any symptoms similar to motion sickness. Playing video games can make your muscles, joints or skin hurt. If any part of your body becomes tired or sore while playing, or if you feel symptoms such as tingling, numbness, burning or stiffness, stop and rest for several hours before playing again. If you continue to have any of the above symptoms or other discomfort during or after play, stop playing and see a doctor.
5.5 Children. The Headset should not be used by children under the age of 13. Adults should make sure children (age 13 and older) use the Headset in accordance with these health and safety warnings including making sure the Headset is used as described in the Before Using the Headset section and the General Instructions and Precautions section. Adults should monitor children (age 13 and older) who are using or have used the Headset for any of the symptoms described in these health and safety warnings (including those described under the Discomfort section), and should limit the time children spend using the headset and ensure they take breaks during use.
6. Disclaimers
6.1 Generally. THE APPLICATION AND SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND SURVIOS EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. SURVIOS DOES NOT WARRANT THAT YOU (OR WITH RESPECT TO OPERATORS OF VR ARCADES, YOUR END USERS) WILL BE ABLE TO ACCESS OR USE THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE GAME OR THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE FOREGOING DISCLAIMER OF WARRANTIES WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE LAWS OF SOME STATES OR JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES, SO SOME OR ALL OF THE DISCLAIMERS IN THIS SECTION MAY NOT APPLY TO YOU.
6.2 Disclaimer of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SURVIOS PROPERTIES, INCLUDING WITH RESPECT TO OPERATORS OF VR ARCADES, YOUR END USERS. YOU UNDERSTAND THAT SURVIOS DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SURVIOS PROPERTIES.
7. Limitation of Liability
7.1 Exclusion. NOTHING IN THESE TERMS SHALL AFFECT YOUR LEGAL RIGHTS AS A CONSUMER (TO THE EXTENT YOU ARE A CONSUMER, AND NOT AN OPERATOR OF A VR ARCADE) OR EXCLUDE OR LIMIT ANY LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM ANY NEGLIGENCE OF SURVIOS, FRAUD OR FRAUDULENT MISREPRESENTATION OR ANY OTHER LIABILITY WHICH CANNOT BE LEGALLY EXCLUDED OR LIMITED.
7.2 Types of Damages. SURVIOS SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES, LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION OR OTHER INTANGIBLE LOSSES (HOWEVER SUCH LOSSES ARE QUALIFIED), ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS OR THE SERVICE ITSELF, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SURVIOS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.3 Cap on Damages. SUBJECT TO SECTION 7.1, IN ALL EVENTS, SURVIOS SHALL NOT BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID TO SURVIOS IN ACCORDANCE WITH THESE TERMS IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT A CLAIM. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID ANYTHING TO SURVIOS DURING SUCH TIME PERIOD, YOUR SOLE REMEDY (AND SURVIOS’S EXCLUSIVE LIABILITY) FOR ANY DISPUTE WITH SURVIOS IS TO STOP USING THE SERVICE AND TO CANCEL YOUR ACCOUNT.
7.4 User Content. THE SURVIOS PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, REMIXES), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
7.5 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SURVIOS AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, SOME OF THE DISCLAIMERS AND LIMITATIONS INCLUDED IN THESE TERMS MAY NOT APPLY TO YOU. TO THE EXTENT THAT SURVIOS MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY WARRANTY OR LIMIT ITS LIABILITY AS SET FORTH IN THESE TERMS, THE SCOPE OF SUCH WARRANTY, AND THE EXTENT OF SURVIOS’S LIABILITY, SHALL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW.
8. Digital Millennium Copyright Act Policy.
Survios has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act. The address of the Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent”) is listed at the end of this policy.
If you believe that material or content residing on or accessible through the Services infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below:
(a) A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
(b) Identification of works or materials being infringed;
(c) Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Survios is capable of finding and verifying its existence;
(d) Contact information about the notifier including address, telephone number and, if available, e-mail address;
(e) A statement that the notifier has a good faith belief that the material is not authorized by the copyright owner, its agent, or the law; and
(f) A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
Please contact the Designated Agent to Receive Notification of Claimed Infringement for Survios at or at 3249 S. La Cienega Blvd., Los Angeles, CA 90016.
9. Arbitration Agreement; Class Waiver; Waiver of Jury Trial
Please read this Arbitration Agreement carefully. It is part of your contract with Survios and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
9.1 Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by Survios that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and Survios, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
9.2 Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Survios should be sent to: 3249 S. La Cienega Blvd., Culver City, California 90016. After the Notice is received, you and Survios may attempt to resolve the claim or dispute informally. If you and Survios do not resolve the claim or dispute within 30 days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
9.3 Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules governing the arbitration are available online at or by calling the AAA at 1-800-778-78710. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If you initiate an arbitration in which you seek less than $500 in damages and comply with the Terms, including the notice requirement set forth in Section 9.2, the Company shall reimburse you for your AAA filing fee, and shall pay all administration and arbitrator fees up to a total amount of $500. If the Arbitrator grants you an award, the company will reimburse your attorney’s fees.
9.4 Additional Rules for Non-appearance Based Arbitration. If non-appearance arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
9.5 Time Limits. If you or Survios pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
9.6 Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Survios, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Survios.
9.7 Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Survios in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND SURVIOS WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
9.8 Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
9.9 Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This Paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
9.10 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: and/or Survios, Inc., 3249 S. La Cienega Blvd., Culver City, California 90016, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your username (if any), the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements you may currently have, or may enter into the future, with us.
9.11 Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
9.12 Right to Waive. Any or all of the rights and limitations set forth in this Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or effect any other portion of this Agreement.
9.13 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Survios.
9.14 Small Claims Court. Notwithstanding the foregoing, either you or Survios may bring an individual action in small claims court.
9.14 Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
9.15 Courts. In any circumstances where the foregoing Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Los Angeles County, California, for such purpose.
10. Term and Termination.
10.1 Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Survios Properties, unless terminated earlier in accordance with the Terms.
10.2 Termination of Services by You. If you want to terminate the Services provided by Survios, you may do so by (a) notifying Survios at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Survios’s address set forth below.
10.3 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof). Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Remixes you create that are associated therewith from our live databases. Survios will not have any liability whatsoever to you for any suspension or termination, including for deletion of any Remixes. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
11. Remedies
11.1 Violations. If Survios becomes aware of any possible violations by you of the Terms, Survios reserves the right to investigate such violations. If, as a result of the investigation, Survios believes that criminal activity has occurred, Survios reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Survios is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Survios Properties, in Survios’s possession in connection with your use of the Survios Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to any claims that the Remixes you created violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of Survios, its Users or the public, and all enforcement or other government officials, as Survios in its sole discretion believes to be necessary or appropriate.
11.2 Breach. In the event that Survios determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for the Survios Properties, Survios reserves the right to:
Warn you via e-mail (to any e-mail address you have provided to Survios) that you have violated the Terms;
Delete any Remixes created by you through the Survios Properties;
Discontinue your registration(s) with the any of the Survios Properties, including any Services or any Survios community;
Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
Pursue any other action which Survios deems to be appropriate.
11.3. No Subsequent Registration. If your registration(s) with or ability to access the Survios Properties, or any other Company community is discontinued by Survios due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Survios Properties or any Survios community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Survios Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Survios reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
12 General Provisions
12.1 Assignment. Survios may assign or delegate these Terms and/or the Privacy Policy, in whole or in part, to any person or entity at any time with or without your consent. You may not assign or delegate any rights or obligations under these Terms or Privacy Policy without Survios’s prior written consent, and any unauthorized assignment and delegation by you is ineffective.
12.2 Severability. You and Survios agree that if any Section of these Terms or provision of the Privacy Policy is found illegal or unenforceable, in whole or in part by any court of competent jurisdiction, such Section or provision shall, as to such jurisdiction, be ineffective solely to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability in any other jurisdiction and without affecting the remaining Sections of the Terms or provisions of the Privacy Policy, which shall continue to be in full force and effect.
12.3 Governing Law. Survios is based in the United States and our Services are subject to U.S. law. We make no representations or warranties that the Services are appropriate or available for use in other locations. These Terms and any dispute arising out of or related to it or Privacy Policy or the Service shall be governed in all respects by California law, without giving effect to any principles that provide for the application of the law of another jurisdiction.
12.4 Electronic Communications. The communications between you and Survios use electronic means, whether you visit the Survios Properties or send Survios e-mails, or whether Survios posts notices on the Survios Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Survios in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Survios provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
12.5 Entire Agreement. These Terms and any documents expressly incorporated by reference herein (including the Privacy Policy), contain the entire understanding of you and Survios, and supersede all prior understandings of the parties relating to the subject matter of these Terms, whether electronic, oral or written, or whether established by custom, practice, policy or precedent, between you and Survios with respect to the Service, provided however, the these Terms may be amended by Survios in accordance with Section 1.
12.6 No Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.7 Notices. Where Survios requires that you provide an e-mail address, you are responsible for providing Survios with your most current e-mail address. In the event that the last e-mail address you provided to Survios is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Survios’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Survios at the following address: 3249 S. La Cienega Blvd., Culver City, California 90016. Such notice shall be deemed given when received by Survios by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
12.8 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Survios Properties, please contact us at: 3249 S. La Cienega Blvd., Culver City, California 90016. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
12.9 Force Majeure. Survios shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Survios, including, but not limited to, any failure to perform hereunder due to unforeseen circumstances or cause beyond Survios’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labour or materials.
12.10 No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Survios as a result of these Terms or your use of the Service.
12.11 Survival. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
12.12 Export Control. You may not use, export, import, or transfer the Survios Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Survios Properties, and any other applicable laws. In particular, but without limitation, the Survios Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Survios Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Survios Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Survios are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer the Survios products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
12.13 Consumer Complaints. In accordance with California Civil Code §17810.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210. This section does not apply to operators of VR Arcades.
Last Updated: July 18, 2018
PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY. BY ACCESSING OR USING THIS WEBSITE OR ANY OTHER WEBSITES OF SURVIOS, INC. (COLLECTIVELY, THE “WEBSITE”), DOWNLOADING, OR USING THIS GAME (“APPLICATION”) IN ANY WAY (WHETHER THROUGH THE WEBSITE, STEAM, A COMMERCIAL ARCADE, OR A THIRD PARTY SERVICE, SUCH AS PLAYSTATION), INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE APPLICATION (EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES”) BY SURVIOS, INC. (“SURVIOS”) CLICKING ON THE “I ACCEPT” BUTTON, OR COMPLETING THE REGISTRATION PROCESS, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH SURVIOS, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THE TERMS OF USE. IF YOU HAVE BEEN SEPARATELY APPROVED BY SURVIOS IN WRITING TO USE THE SERVICE FOR COMMERCIAL PURPOSES, YOU FURTHER REPRESENT THAT YOU ARE THE OWNER, OPERATOR, OR AUTHORIZED REPRESENTATIVE OF SUCH APPROVED PHYSICAL ESTABLISHMENT CONTAINING ONE (1) OR MORE VIRTUAL REALITY EXPERIENCES OR GAMES THAT CAN BE PLAYED BY CUSTOMERS FOR A FEE (“VR ARCADE”). IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THIS APPLICATION OR THE SERVICES.
THE TERMS OF USE INCLUDE A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS, AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES.
THE TERMS OF USE LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE
PLEASE READ THE HEALTH AND SAFETY WARNINGS IN SECTION 5 BELOW, ESPECIALLY IF YOU ARE PREGNANT, ELDERLY, HAVE PRE-EXISTING BINOCULAR VISION ABNORMALTIES OR PSYCHIATRIC DISORDERS, OR SUFFER FROM A HEART CONDITION OR OTHER SERIOUS MEDICAL CONDITION.
In using the Service, you may be required to provide Survios with certain personally identifiable information, retention and use of which are subject to Survios’s Privacy Policy (the “Privacy Policy”), which is incorporated herein by reference and can be found at [INSERT PRIVACY POLICY URL].
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Terms.”
1. Updates and Modifications
1.1 Changes to Terms. PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY THE SURVIOS IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Survios will make a new copy of the Terms of Use available at the Website and within the Application and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website or within the Application. We will also update the “Last Updated” date at the top of the Terms of Use. If we make any material changes, and you have registered with us to create an Account (as defined in Section 2.2 below) we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms. Any changes to the Terms will be effective immediately for new Users of the Website, the Application and/ or Services and will be effective thirty (30) days after posting notice of such changes on the Website for existing Users, provided that any material changes shall be effective for Users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes to Registered Users (defined in Section 2.2 below). Survios may require you to provide consent to the updated Terms in a specified manner before further use of the Website, the Application and/ or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website, the Application and/or the Services. Otherwise, your continued use of the Website, the Application and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
1.2 Modifications to Services. You understand that the Application and Services are evolving. As such, Survios also reserves the right, at its discretion, to change, modify, update, suspend, restrict, or alter your access to any features or parts of the Application or Service, and may require that you download and install updates to the Service, at any time, without notice or liability to you. You also understand and agree that any such changes or updates to the Application might change the system specifications necessary to use the Application, and in such a case, you, and not Survios, are responsible for purchasing any necessary additional software and/or hardware in order to access and use the Application. You acknowledge that when an upgrade is available, previous versions of the Application may cease to be available or no longer be supported by Survios.
2. Use of Services
2.1. Grant of a Limited License to Use the Service
2.1.1 Application License. The Website, Application, the Services and the information and content available therein (collectively, the “Survios Properties”) are protected by copyright laws throughout the world. Subject to your agreement, and continuing compliance with these Terms, and any other relevant Survios policies, Survios grants you a personal, non-exclusive, non-transferable, non-sublicensable, revocable limited license subject to the limitations below to download, install and use a copy of the Application on a single computer that you own or control and to run such copy of the Application solely for your own individual, non-commercial, entertainment purposes only, unless you are a VR Arcade. You agree not to use the Service for any other purpose. You may not sell, copy, exchange, transfer, assign or otherwise distribute anything you copy, create, buy or derive from the Application, unless you are expressly permitted by Survios.
2.1.2 Commercial Application License for VR Arcades. To the extent you have been identified and approved as a VR Arcade by Survios, subject to your agreement and continuing compliance with these Terms, and any other relevant Survios policies, Survios grants you a non-exclusive, non-transferable, non-sublicensable, revocable limited license subject to the limitations below to (a) download, install and use a copy of the Application on a single computer or other authorized device that you own or control and to run such copy of the Application at the VR Arcade for the purposes of making such Application available to customers of the VR Arcade (“End Users”); and (b) use Survios’ trademarks, trade names, logos, designs, artwork, and marketing materials, created and provided by Survios for and used with each Application for the sole purpose of selling, advertising, publicizing, promoting, and making available each application at the VR Arcade. You agree not to use the Service for any other purpose. You may not sell, copy, exchange, transfer, assign or otherwise distribute anything you copy, create, buy or derive from the Application, unless you are expressly permitted by Survios.
2.1.3 Necessary Equipment. The Service may require an internet connection to access internet-based features, authenticate the Service, or perform other functions. You acknowledge that you may be charged by your service provider, and shall be responsible for any such charges, for internet access. Certain hardware may also be required to access certain features and functionality of the Service. You are solely responsible for obtaining all hardware necessary to use the Service.
2.2. Account
(a) Account Registration. In order to access certain features of the Survios Properties, or with respect to operators of VR Arcades, in order to make an Application available to End Users, you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a user of the Survios Properties (“User”) who has registered an account on the Application (“Account”), or has a valid account on the Third Party Service (as defined below) through which the User has connected to the Services (each such account, a “Third-Party Account”).
(b) Steam. You acknowledge and agree that Survios may make the Application available to you through the digital distribution platform, STEAM®, which is owned by Valve Corporation (“STEAM®”). Accordingly, you may need a STEAM® account to activate the license granted in Section 2.1.1, and in such event, your use of an Application will be subject to the STEAM® Subscriber Agreement and/or Terms of Service, as then-currently in effect (the “STEAM® Terms”). Survios makes no representation or warranty to you that your use of an Application is in compliance with the STEAM® Terms.
(c) Third Party Accounts. You may also link your Account with certain third party services (each, a “Third Party Service”) by either (i) providing your Third Party Account login information to us; or (ii) allowing us to access your Third Party Account, if permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to us and/or grant us access to your Third Party Account without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating us to pay any fees or making us subject to any usage limitations imposed by such third party service providers. You have the ability to disable the connection between your Account and your Third Party Accounts at any time by accessing the “Settings” section of the App or Website. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE SOCIAL NETWORKING SERVICE AND OTHER SOFTWARE APPLICATION PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH SOCIAL NETWORKING SERVICE AND SOFTWARE APPLICATION PROVIDERS.
(d) Registration Data. In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using the Survios Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account, including, with respect to operators of VR Arcades, all activities of End Users. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Survios Properties by minors, including with respect to operators of VR Arcades, any End User minors. You may not share your Account or password with anyone, and you agree to (1) notify Survios immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Survios has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Survios has the right to suspend or terminate your Account and refuse any and all current or future use of the Survios Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform or SNS at any given time. Survios reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Survios Properties if you have been previously removed by Survios, or if you have been previously banned from any of the Survios Properties.
2.3. Rules of Conduct. Any use of the Service in violation of these limitations set out in this Section is strictly prohibited, can result in the immediate revocation of your license and may subject you to liability for violations of law. Survios reserves the right to determine what conduct it considers to be in violation of the rules of use or otherwise outside the intent or spirit of these Terms or the Service itself. Survios reserves the right to take action as a result, which may include terminating your Account and prohibiting you from using the Service. Such actionable violations are set forth in the following rules where you agree that you will not, under any circumstances:
(a) Engage in any act that Survios deems to be in conflict with the spirit or intent of the Survios Properties or make improper use of Survios’s support services;
(b) Use cheats, exploits, automation software, bots, hacks, mods or any unauthorized third-party software, code or other device designed to modify or interfere with the Survios Properties, any Survios game or any Survios game experience or, without Survios’s express written consent, modify or cause to be modified any files that are a part of the Service or any Survios game;
(c) Disrupt, overburden, or aid or assist in the disruption or overburdening of any computer or server (“Server”) used to offer or support the Service or any other Survios game environment;
(d) Institute, assist, or become involved in any type of attack, including, but not limited to, distribution of a virus, denial of service attacks upon the Survios Properties, or other attempts to disrupt the Service or any other person’s use or enjoyment of the Service;
(e) Attempt to gain unauthorized access to the Survios Properties, Accounts registered to other users, or to the computers, Servers, or networks connected to the Service by any means other than the user interface provided by Survios, including, but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device, or software that is part of the Survios Properties;
(f) Post any content or information that is: abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable, offensive, a violation of the rights of any third party; or contains nudity, excessive violence, offensive subject matter, links to such content or links to content not created by Survios.
(g) Attempt to, or harass, abuse, or harm, or advocate or incite harassment, abuse, or harm of another person, group, including, but not limited to, Survios employees;
(h) Make available through the Survios Properties any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity, or other right of any person or entity or impersonates any other person, including, but not limited to, Survios employees;
(i) Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the Survios Properties or any Survios game, or to obtain any information from the Survios Properties or any Survios game using any method not expressly permitted by Survios, except to the extent that such activities may not be prohibited by law, and in such circumstances provided that the information you obtain during such activities is:
(i) only used for the purpose of achieving the inter-operability of the Survios Properties with another software program;
(ii) not disclosed or communicated to any third party without Survios’s prior written consent; and
(iii) not used to create any software that is the same or similar to the Survios Properties.
(j) Solicit or attempt to solicit personal information from other users of the Survios Properties or any Survios game or collect or post anyone’s private information, including, but not limited to, personally identifiable information (whether in text, image or video form), identification documents, or financial information through the Service;
(k) Use the Survios Properties in any way that could be considered illegal or immoral, which in some jurisdictions (including the United States) would include gambling or wagering;
(l) Breach any technology control or export laws and regulations that apply to the technology used or supported by the Survios Properties;
(m) Upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes” or any other form of solicitation;
(n) Unless you are a VR Arcade, use the Survios Properties for any commercial purpose, including, but not limited to, communicating or facilitating any commercial advertisement or solicitation; or
(o) Unless you are a VR Arcade, and then only in accordance with your existing license agreement, reproduce, duplicate, copy, sell, trade, resell, or exploit for any commercial purpose, any portion of the Survios Properties (including your Account), or access to or use of the Survios Properties.
(p) record, film, or otherwise duplicate or copy any content on the Services, including any Remixes.
2.4. End User Terms of Service. If you are the operator of an approved VR Arcade, prior to granting any End User access to the Services, you will cause such End User to sign a copy of or click to agree to these Terms. You will use commercially reasonable efforts to enforce these Terms against the End Users, including, without limitation, terminating an End User’s use of the Services at the VR Arcade as a result of such End User’s breach of these Terms.
3. Intellectual Property.
(a) Stem Files. When you register for an Account, we make available for your use stem files of original audio recordings (“Stems”) for the production of new sound recording remixes based on such Stems (“Remixes”). You acknowledge and agree that you do not own the Stems. All right, title, and interest in and to the Stems are owned by the artists and/or composers from whom we licensed such Stems. Your rights to use the Stems are solely limited to use in connection with your creation of Remixes. You have no right to use the Stems outside of the Survios Properties or for any other use, except to create Remixes
(b) Remixes.
(i) You acknowledge and agree that Survios has the unrestricted, assignable, sublicensable, right throughout the universe to use and otherwise exploit (including commercially) all Remixes you create through the Service, through any media and formats now known or hereafter developed, for the purposes of (i) advertising, marketing, and promoting Survios and the Survios Properties; (ii) sharing such Remixes with third parties, including Third Party Services and other partner and affiliate websites and services; and (iii) using such Remixes on and through the Service, including but not limited to, duplicating (e.g. as audio carrier, download); downloading; reproducing (and making mechanical reproductions of the musical works embodied in such sound recordings); distributing; broadcasting (e.g. radio, television); publicly performing (and the musical works embodied therein); storing in databases; streaming, downloading, and otherwise making available online (e.g. through the Internet, Mobile Networks, etc.); and editing, all on a royalty-free basis. You hereby acknowledge and agree that you shall have no right in or to the Remixes you create and may not, under any circumstances, copy, reproduce, record, duplicate, share, distribute, or otherwise use the Remixes, or use the Remixes outside the Survios Properties.
(ii) To the extent that a music public performance license is required with respect to the performance of any Remixes via the Services at a VR Arcade, including by any End Users, the obligation to (i) obtain, secure and maintain all necessary authorizations from BMI, ASCAP and SESAC (or any other applicable performance rights organization) for the performance of such Remixes via the Services to the extent that such authorizations are available from BMI, ASCAP, SESAC and/or other applicable performance rights organization on a blanket license basis, and (ii) timely pay all licensing fees related thereto (collectively, “Music Performance Fees”), as between Survios and you, as the operator of a VR Arcade, shall belong to you.
(c) Waiver of Moral Rights. Except as prohibited by law, you waive any rights of attribution and/or any moral rights you may have in the Remixes, regardless of whether the Remixes are altered or changed in any manner.
(d) Ownership of Other Content. You agree that you have no right or title in or to any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials, including but not limited to Stems and Remixes (“Content”) that appears on or in the Survios Properties, including, but not limited to, the virtual goods or currency appearing or originating in any Survios game, whether earned in a game or purchased from Survios, or any other attributes associated with an Account or stored on or in the Survios Properties. Survios prohibits and does not recognize any purported transfers of virtual property effectuated outside the Survios Properties, or the purported sale, lease, gift or trade in the “real world” of anything that appears or originates in the Survios Properties. Accordingly, you may not trade, sell, or attempt to sell in-game items or currency for “real” money, or exchange those items or currency for value of any kind outside the game. Any such transfer or attempted transfer is prohibited and void, and will subject your Account to termination.
(g) Survios Intellectual Property. You agree that Survios and its suppliers own all rights, title and interest in the Survios Properties (including but not limited to, the remixing engine, and any games, titles, computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, in-game chat transcripts, character profile information, recordings of games played using a Survios game client, and the Survios game clients and server software). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Application, the Services, or the Survios Properties. Survios’s name, stylized “S”, and other related graphics, logos, service marks and trade names used on or in connection with the Survios Properties or in connection with the Services are the trademarks of Survios and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Survios Properties are the property of their respective owners.
4. Indemnification. You agree to indemnify and hold Survios, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Survios Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) (collectively “Losses”) relating to or arising out of: (a) Remixes you create; (b) any claim for performance or other royalties by a third party, including a PRO, in connection with Survios’ use or exploitation, or a Third Party Service’s use or exploitation, of Remixes you create (and, with respect to operators of VR Arcades, the VR Arcade’s use or exploitation of such Remixes); (c) your use of, or inability to use, the Survios Properties; (d) your violation of these Terms; (e) your violation of any rights of another party, including any Users; or (f) your violation of any applicable laws, rules or regulations. Survios reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Survios in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the Survios Properties.
5. Health and Safety Warnings. In the event you use a virtual reality headset in connection with your use of or participation in the Application (a “Headset”), please read the warnings in this Section 5 below carefully before using the Headset or the Application to reduce the risk of personal injury, discomfort or property damage. By using the Service, you represent and warrant that you have read and understand these warnings and instructions. If you are the operator of an approved VR Arcade, in the event you make one (1) or more Headsets available in connection with your provision of the Services to End Users at the VR Arcade, you shall remain solely liable for any injury, death, or property damage incurred by an End User in connection with such Headset. We may update or revise these warnings and instructions, so please review them periodically.
5.1 Before Using the Headset. Review the hardware and software recommendations for use of the Headset. Your Headset and the Application are not designed for use with any unauthorized device, accessory and/or software. Use of an unauthorized device, accessory and/or software may result in injury to you or others, may cause performance issues or damage to your system and related services. Before using the Headset, please read and follow all setup and operating instructions provided by the manufacturer of the Headset. People who are prone to motion sickness in the real world may have an heightened risk of experiencing discomfort while using a Headset in connection with the Application. Such individuals should take extra care to read and following these warnings carefully. Survios recommends seeing a doctor before using the Headset in connection with the Application if you are pregnant, elderly, have pre-existing binocular vision abnormalities or psychiatric disorders, or suffer from a heart condition or other serious medical condition.
5.2 General Instructions and Precautions. USE ONLY IN A SAFE ENVIRONMENT. If you are the operator of a VR Arcade, you will provide a safe environment in which End Users may use the Headset and Application. The use of Headsets distracts you from and completely blocks your view of your actual surroundings. Always be aware of your surroundings when using a Headset and remain seated at all times. Take special care to ensure that you are not near other people, objects, stairs, balconies, windows, furniture, or other items that you can bump into or knock down when using – or immediately after using – a Headset. Do not handle sharp or otherwise dangerous objects while using a Headset. Take at least a 10 to 15 minute break every 30 minutes, even if you do not think you need it. Each person is different, so take more frequent and longer breaks if you feel discomfort. Listening to sound at high volumes can cause irreparable damage to your hearing. Background noise, as well as continued exposure to high volume levels, can make sounds seem quieter than they actually are. Due to the immersive nature of the virtual reality experience in the Application, do not use a Headset with the sound at high volume so that you can maintain awareness of your surroundings and reduce the risk of hearing damage.
5.3 Seizures. Some people may have severe dizziness, seizures, epileptic seizures or blackouts triggered by light flashes or patterns, and this may occur while they are watching TV, playing video games or experiencing virtual reality, even if they have never had a seizure or blackout before or have no history of seizures or epilepsy. Such seizures are more common in children and young people under the age of 20. ANYONE WHO HAS HAD A SEIZURE, LOSS OF AWARENESS, OR OTHER SYMPTOM LINKED TO AN EPILEPTIC CONDITION SHOULD SEE A DOCTOR BEFORE USING A HEADSET IN CONNECTION WITH THE APPLICATION.
5.4 Discomfort. Immediately discontinue use of your Headset when using the Application if anyone using the Headset experiences any of the following symptoms: seizures; loss of awareness; eye strain; eye or muscle twitching; involuntary movements; altered, blurred or double vision or other visual abnormalities; dizziness; disorientation; impaired balance; impaired hand-eye coordination; excessive sweating; increased salivation; nausea; lightheadedness; discomfort or pain in the head or eyes; fatigue; or any symptoms similar to motion sickness. Playing video games can make your muscles, joints or skin hurt. If any part of your body becomes tired or sore while playing, or if you feel symptoms such as tingling, numbness, burning or stiffness, stop and rest for several hours before playing again. If you continue to have any of the above symptoms or other discomfort during or after play, stop playing and see a doctor.
5.5 Children. The Headset should not be used by children under the age of 13. Adults should make sure children (age 13 and older) use the Headset in accordance with these health and safety warnings including making sure the Headset is used as described in the Before Using the Headset section and the General Instructions and Precautions section. Adults should monitor children (age 13 and older) who are using or have used the Headset for any of the symptoms described in these health and safety warnings (including those described under the Discomfort section), and should limit the time children spend using the headset and ensure they take breaks during use.
6. Disclaimers
6.1 Generally. THE APPLICATION AND SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND SURVIOS EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. SURVIOS DOES NOT WARRANT THAT YOU (OR WITH RESPECT TO OPERATORS OF VR ARCADES, YOUR END USERS) WILL BE ABLE TO ACCESS OR USE THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE GAME OR THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE FOREGOING DISCLAIMER OF WARRANTIES WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE LAWS OF SOME STATES OR JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES, SO SOME OR ALL OF THE DISCLAIMERS IN THIS SECTION MAY NOT APPLY TO YOU.
6.2 Disclaimer of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SURVIOS PROPERTIES, INCLUDING WITH RESPECT TO OPERATORS OF VR ARCADES, YOUR END USERS. YOU UNDERSTAND THAT SURVIOS DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SURVIOS PROPERTIES.
7. Limitation of Liability
7.1 Exclusion. NOTHING IN THESE TERMS SHALL AFFECT YOUR LEGAL RIGHTS AS A CONSUMER (TO THE EXTENT YOU ARE A CONSUMER, AND NOT AN OPERATOR OF A VR ARCADE) OR EXCLUDE OR LIMIT ANY LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM ANY NEGLIGENCE OF SURVIOS, FRAUD OR FRAUDULENT MISREPRESENTATION OR ANY OTHER LIABILITY WHICH CANNOT BE LEGALLY EXCLUDED OR LIMITED.
7.2 Types of Damages. SURVIOS SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES, LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION OR OTHER INTANGIBLE LOSSES (HOWEVER SUCH LOSSES ARE QUALIFIED), ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS OR THE SERVICE ITSELF, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SURVIOS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.3 Cap on Damages. SUBJECT TO SECTION 7.1, IN ALL EVENTS, SURVIOS SHALL NOT BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID TO SURVIOS IN ACCORDANCE WITH THESE TERMS IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT A CLAIM. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID ANYTHING TO SURVIOS DURING SUCH TIME PERIOD, YOUR SOLE REMEDY (AND SURVIOS’S EXCLUSIVE LIABILITY) FOR ANY DISPUTE WITH SURVIOS IS TO STOP USING THE SERVICE AND TO CANCEL YOUR ACCOUNT.
7.4 User Content. THE SURVIOS PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, REMIXES), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
7.5 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SURVIOS AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, SOME OF THE DISCLAIMERS AND LIMITATIONS INCLUDED IN THESE TERMS MAY NOT APPLY TO YOU. TO THE EXTENT THAT SURVIOS MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY WARRANTY OR LIMIT ITS LIABILITY AS SET FORTH IN THESE TERMS, THE SCOPE OF SUCH WARRANTY, AND THE EXTENT OF SURVIOS’S LIABILITY, SHALL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW.
8. Digital Millennium Copyright Act Policy.
Survios has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act. The address of the Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent”) is listed at the end of this policy.
If you believe that material or content residing on or accessible through the Services infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below:
(a) A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
(b) Identification of works or materials being infringed;
(c) Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Survios is capable of finding and verifying its existence;
(d) Contact information about the notifier including address, telephone number and, if available, e-mail address;
(e) A statement that the notifier has a good faith belief that the material is not authorized by the copyright owner, its agent, or the law; and
(f) A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
Please contact the Designated Agent to Receive Notification of Claimed Infringement for Survios at or at 3249 S. La Cienega Blvd., Los Angeles, CA 90016.
9. Arbitration Agreement; Class Waiver; Waiver of Jury Trial
Please read this Arbitration Agreement carefully. It is part of your contract with Survios and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
9.1 Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by Survios that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and Survios, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
9.2 Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Survios should be sent to: 3249 S. La Cienega Blvd., Culver City, California 90016. After the Notice is received, you and Survios may attempt to resolve the claim or dispute informally. If you and Survios do not resolve the claim or dispute within 30 days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
9.3 Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules governing the arbitration are available online at or by calling the AAA at 1-800-778-78710. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If you initiate an arbitration in which you seek less than $500 in damages and comply with the Terms, including the notice requirement set forth in Section 9.2, the Company shall reimburse you for your AAA filing fee, and shall pay all administration and arbitrator fees up to a total amount of $500. If the Arbitrator grants you an award, the company will reimburse your attorney’s fees.
9.4 Additional Rules for Non-appearance Based Arbitration. If non-appearance arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
9.5 Time Limits. If you or Survios pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
9.6 Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Survios, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Survios.
9.7 Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Survios in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND SURVIOS WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
9.8 Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
9.9 Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This Paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
9.10 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: and/or Survios, Inc., 3249 S. La Cienega Blvd., Culver City, California 90016, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your username (if any), the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements you may currently have, or may enter into the future, with us.
9.11 Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
9.12 Right to Waive. Any or all of the rights and limitations set forth in this Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or effect any other portion of this Agreement.
9.13 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Survios.
9.14 Small Claims Court. Notwithstanding the foregoing, either you or Survios may bring an individual action in small claims court.
9.14 Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
9.15 Courts. In any circumstances where the foregoing Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Los Angeles County, California, for such purpose.
10. Term and Termination.
10.1 Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Survios Properties, unless terminated earlier in accordance with the Terms.
10.2 Termination of Services by You. If you want to terminate the Services provided by Survios, you may do so by (a) notifying Survios at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Survios’s address set forth below.
10.3 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof). Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Remixes you create that are associated therewith from our live databases. Survios will not have any liability whatsoever to you for any suspension or termination, including for deletion of any Remixes. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
11. Remedies
11.1 Violations. If Survios becomes aware of any possible violations by you of the Terms, Survios reserves the right to investigate such violations. If, as a result of the investigation, Survios believes that criminal activity has occurred, Survios reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Survios is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Survios Properties, in Survios’s possession in connection with your use of the Survios Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to any claims that the Remixes you created violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of Survios, its Users or the public, and all enforcement or other government officials, as Survios in its sole discretion believes to be necessary or appropriate.
11.2 Breach. In the event that Survios determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for the Survios Properties, Survios reserves the right to:
Warn you via e-mail (to any e-mail address you have provided to Survios) that you have violated the Terms;
Delete any Remixes created by you through the Survios Properties;
Discontinue your registration(s) with the any of the Survios Properties, including any Services or any Survios community;
Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
Pursue any other action which Survios deems to be appropriate.
11.3. No Subsequent Registration. If your registration(s) with or ability to access the Survios Properties, or any other Company community is discontinued by Survios due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Survios Properties or any Survios community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Survios Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Survios reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
12 General Provisions
12.1 Assignment. Survios may assign or delegate these Terms and/or the Privacy Policy, in whole or in part, to any person or entity at any time with or without your consent. You may not assign or delegate any rights or obligations under these Terms or Privacy Policy without Survios’s prior written consent, and any unauthorized assignment and delegation by you is ineffective.
12.2 Severability. You and Survios agree that if any Section of these Terms or provision of the Privacy Policy is found illegal or unenforceable, in whole or in part by any court of competent jurisdiction, such Section or provision shall, as to such jurisdiction, be ineffective solely to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability in any other jurisdiction and without affecting the remaining Sections of the Terms or provisions of the Privacy Policy, which shall continue to be in full force and effect.
12.3 Governing Law. Survios is based in the United States and our Services are subject to U.S. law. We make no representations or warranties that the Services are appropriate or available for use in other locations. These Terms and any dispute arising out of or related to it or Privacy Policy or the Service shall be governed in all respects by California law, without giving effect to any principles that provide for the application of the law of another jurisdiction.
12.4 Electronic Communications. The communications between you and Survios use electronic means, whether you visit the Survios Properties or send Survios e-mails, or whether Survios posts notices on the Survios Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Survios in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Survios provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
12.5 Entire Agreement. These Terms and any documents expressly incorporated by reference herein (including the Privacy Policy), contain the entire understanding of you and Survios, and supersede all prior understandings of the parties relating to the subject matter of these Terms, whether electronic, oral or written, or whether established by custom, practice, policy or precedent, between you and Survios with respect to the Service, provided however, the these Terms may be amended by Survios in accordance with Section 1.
12.6 No Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.7 Notices. Where Survios requires that you provide an e-mail address, you are responsible for providing Survios with your most current e-mail address. In the event that the last e-mail address you provided to Survios is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Survios’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Survios at the following address: 3249 S. La Cienega Blvd., Culver City, California 90016. Such notice shall be deemed given when received by Survios by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
12.8 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Survios Properties, please contact us at: 3249 S. La Cienega Blvd., Culver City, California 90016. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
12.9 Force Majeure. Survios shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Survios, including, but not limited to, any failure to perform hereunder due to unforeseen circumstances or cause beyond Survios’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labour or materials.
12.10 No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Survios as a result of these Terms or your use of the Service.
12.11 Survival. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
12.12 Export Control. You may not use, export, import, or transfer the Survios Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Survios Properties, and any other applicable laws. In particular, but without limitation, the Survios Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Survios Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Survios Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Survios are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer the Survios products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
12.13 Consumer Complaints. In accordance with California Civil Code §17810.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210. This section does not apply to operators of VR Arcades.