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Toast Interactive
End User License Agreement
Version 2.1 – Last Updated: March 11th 2024
This End User License Agreement (“EULA”) includes terms of use between a user of our Software (“you” or “your”), and Toast VR PTY LTD, an Australian Proprietary Limited company (trading as, “Toast Interactive,” “we,” “our,” and their derivatives). This EULA governs your use of our virtual reality software (the “Software”), including but not limited to Max Mustard (the “Game”). Software is made available for download by Device Partners as described in more detail in Section 10 below.
THIS EULA CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT APPLY TO YOU AND YOUR ACCESS, REGISTRATION FOR, DOWNLOAD AND USE OF SOFTWARE. PLEASE READ THEM CAREFULLY. BY ACCESSING, REGISTERING FOR, DOWNLOADING OR USING OUR SOFTWARE, YOU AGREE TO BE BOUND BY THIS EULA AND OUR PRIVACY POLICY. IF YOU DO NOT AGREE TO BE BOUND BY THIS EULA AND THE PRIVACY POLICY, PLEASE DO NOT ACCESS, REGISTER FOR, DOWNLOAD AND/OR USE SOFTWARE.
1. Acceptance of this EULA
In order to agree to this EULA, you need to be at least the age of majority in the place you are domiciled (a legal adult); otherwise, if you are 13 years or older, your parent or guardian can agree to this EULA with you where (a) they guarantee your compliance with its stipulations, and (b) either you or your parent or guardian must have the power and capacity to enter a binding contract with us and not be barred from doing so under any applicable laws. This EULA continues to apply to you at any time in connection with your access and/or use of Software.
Eligibility for Children. Software is available only for individuals aged 13 years or older. If you are 13 or older but are under the age of majority, then you agree to review this EULA (and all Health and Safety Guidelines associated with the Game) with your parent or guardian to make sure that both you and your parent or guardian understand and agree to this EULA. You agree to have your parent or guardian review and accept this EULA in their own capacity and on your behalf. If you are a parent or guardian agreeing to this EULA for the benefit of a child, then you agree to and accept full responsibility for that child’s obligations and agree to and acknowledge our rights in relation to all.
2. Health and Safety is Your Responsibility When Using the Game
The Game is an immersive virtual reality experience. Players may experience disorientation, loss of balance, elevated heart rate, vertigo/dizziness, lightheadedness, seizures, blurred/double vision, nausea, panic attacks, anxiety, impaired decision-making ability, and/or other physical or psychological reactions or injury.
IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, YOU SHOULD DIAL “911” IMMEDIATELY (IN THE UNITED STATES) OR CONTACT EMERGENCY MEDICAL RESPONDENTS IN YOUR APPLICABLE JURISDICTION.
TOAST INTERACTIVE DOES NOT TAKE RESPONSIBILITY FOR ANY INJURY OR DAMAGE ASSOCIATED WITH YOUR USE OF THE SOFTWARE OR DUE TO YOUR ACTIONS WHILE USING SOFTWARE. YOU EXPRESSLY AGREE THAT YOUR USE OF SOFTWARE IS AT YOUR SOLE RISK AND THAT YOU ARE RESPONSIBLE AND LIABLE FOR YOUR SAFETY (AND THE SAFETY OF ANY OTHER PERSONS USING YOUR PARTNER HEADSET) WHEN USING THE SOFTWARE.
3. Privacy Policy
All personal information we collect through Software is subject to our Privacy Policy at , which is hereby incorporated by reference into this EULA. Please email us at .au if you have any questions about our practices concerning how we collect, use, protect, store, disclose, and otherwise process your personal information.
4. Limited License to Use Software
Toast Interactive hereby grants you a personal, non-transferable, non-exclusive license to use Software on Partner Headsets for personal, non-commercial purposes in accordance with the terms of this EULA.
You are not permitted to:
− Edit, alter, modify, adapt, translate or otherwise change the whole or any part of Software nor permit the whole or any part of Software to be combined with or become incorporated in any other software (other than Partner Headsets), nor decompile, disassemble or reverse engineer Software or attempt to do any such things.
− Reproduce, copy, distribute, resell or otherwise use Software for any commercial purpose.
− Access or use Software to build a similar or competitive product or application.
− Use Software for your own commercial benefit, or allow a third party to use Software for their commercial benefit.
− Remove or destroy any copyright notices or other proprietary markings contained on or in any portion of Software.
− Use Software in a manner that violates any applicable local, state, provincial, national, or international law.
− Violate any requirements, procedures, policies, or regulations of our Device Partners.
− Use Software for any purpose that Toast Interactive considers in its reasonable discretion to be a breach of this EULA.
You are solely responsible for complying with all laws, rules, and regulations applicable to you when you use Software. You agree to comply with the above license restrictions and usage requirements (“Restrictions”) and agree not to assist or permit any person to engage in any conduct that does not comply with the above conduct. Any use of Software in violation of these Restrictions is prohibited and may result in our suspension or termination of your right to access and use Software and may possibly expose you to legal action and damages. In the event that Toast Interactive believes that you have breached any of the above Restrictions, Toast Interactive reserves the right to suspend and/or permanently terminate your access to and use of Software at our sole discretion.
5. DISCLAIMERS
SOFTWARE, INFORMATION, CONTENT, MATERIALS, AND PRODUCTS INCLUDED IN OR OTHERWISE MADE AVAILABLE TO YOU THROUGH SOFTWARE ARE PROVIDED BY TOAST INTERACTIVE ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TOAST INTERACTIVE DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, NEITHER TOAST INTERACTIVE NOR ANY OF ITS EMPLOYEES, OFFICERS, AGENTS OR REPRESENTATIVES WARRANT THAT SOFTWARE, INFORMATION, CONTENT, MATERIALS, AND PRODUCTS INCLUDED IN OR OTHERWISE MADE AVAILABLE TO YOU THROUGH SOFTWARE, OR ELECTRONIC COMMUNICATIONS SENT FROM TOAST INTERACTIVE REGARDING SOFTWARE, WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT SOFTWARE OR OUR SERVER INFRASTRUCTURE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT SOFTWARE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
TOAST INTERACTIVE CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY LOSS, DAMAGES OR LIABILITIES ARISING FROM THE FAILURE OF ANY TELECOMMUNICATIONS INFRASTRUCTURE, OR THE INTERNET, OR FOR YOUR MISUSE OF ANY ADVICE, IDEAS, INFORMATION, CONTENT, INSTRUCTIONS OR GUIDELINES ACCESSED THROUGH THE SOFTWARE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
6. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL TOAST INTERACTIVE, ITS AFFILIATES, LICENSORS, AND SERVICE PROVIDERS, AND ITS AND THEIR RESPECTIVE MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSORS, SUPPLIERS, SUCCESSORS, AND ASSIGNS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH (A) THIS EULA OR (B) YOUR USE OF OR INABILITY TO USE SOFTWARE OR ITS CONTENTS, INCLUDING BUT NOT LIMITED TO ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY, PROPERTY DAMAGE, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL TOAST INTERACTIVE’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH (A) THIS EULA, OR (B) YOUR USE OF OR INABILITY TO USE SOFTWARE OR ITS CONTENTS EXCEED ONE THOUSAND US DOLLARS (USD $1,000.00). THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TOAST INTERACTIVE AND YOU.
7. General Release
You are solely responsible for all claims, injuries (including death), illnesses, damages, liabilities, and costs (“Liabilities”) suffered by you or any third party as a result of your use of Software. To the maximum extent permitted by applicable law, you hereby release the Toast Interactive Parties (as defined below) from any and all responsibility and liability for the foregoing.
YOU HEREBY WAIVE THE PROVISIONS OF ANY APPLICABLE LAW LIMITING OR PROHIBITING A GENERAL RELEASE. IF YOU ARE A CALIFORNIA, U.S. RESIDENT, YOU ACKNOWLEDGE AND HEREBY EXPRESSLY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
You hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to the release of any unknown or unsuspected claims you may have against the Toast Interactive Parties pertaining to the subject matter of this section.
8. Indemnification
You agree to defend, indemnify, and hold harmless Toast Interactive, its affiliates, licensors, and service providers, and its and their respective members, officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns (the “Toast InteractiveParties”) from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to (i) your violation of this EULA, (ii) your use or inability to use Software, and any use of Software by a third party using Software on or through your Partner Headset, (iii) your failure to comply with any applicable laws and regulations (including any privacy laws), or (iv) your violation of any third party right, including without limitation any copyright, property or privacy right. You shall not settle any such claim without the written consent of the applicable indemnified party.
9. Content
Toast Interactive Content. Except for Third Party Content (as defined below), all information and materials contained on or within Software, including, but not limited to, text, graphics, HTML, look and feel, images, illustrations, designs, photographs, audio, video, names, product names or descriptions, icons, typefaces, software (both source and object code), format, queries, algorithms and written and other materials and information (collectively, “Toast Interactive Content”), as well as their selection and arrangement, and all intellectual property and other rights relating to Toast Interactive Content, as between you and Toast Interactive, are solely and exclusively owned by Toast Interactive. You will not delete or alter any copyright, trademark or other proprietary rights notices from Toast Interactive Content.
Third Party Content. Software may contain proprietary information and materials licensed or provided to Toast Interactive by third parties in connection with Toast Interactive’s provision of Software and/or other business purposes (collectively, “Third Party Content”). Third Party Content is the copyrighted work of its owner, who expressly retains all right, title and interest in and to the Third Party Content, including, without limitation, all intellectual property rights therein and thereto.
All statements and/or opinions expressed in the Third Party Content are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Toast Interactive. We are not responsible, or liable to you or any third party, for the content or accuracy of any Third Party Content provided by any third parties.
No Reliance. Any reliance you place on the Game and other Software, Toast Interactive Content and Third Party Content is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other user of Software or your Partner Headset. THE GAME AND OTHER SOFTWARE MAY PROVIDE GENERAL INFORMATION ABOUT HEALTH AND SAFETY. SUCH INFORMATION IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT PROVIDED BY A DOCTOR OR OTHER QUALIFIED HEALTHCARE PROFESSIONAL. YOU SHOULD NOT DISREGARD MEDICAL ADVICE OR DELAY SEEKING MEDICAL CARE BASED ON ANYTHING PRESENTED ON OR THROUGH THE GAME OR OTHER SOFTWARE. TOAST INTERACTIVE IS NOT ENGAGED IN RENDERING MEDICAL OR SIMILAR PROFESSIONAL SERVICES, AND INFORMATION AND ADVICE MADE AVAILABLE ON OR THROUGH THE GAME AND OTHER SOFTWARE SHOULD NOT BE USED FOR DIAGNOSING A HEALTH PROBLEM OR DISEASE.
Your Feedback. We welcome feedback, comments and suggestions for improvements to the Software (“Feedback”). You can submit Feedback by emailing us at .au. You grant us a nonexclusive, irrevocable, worldwide, royalty-free, fully paid up right and license to use any Feedback provided by you to us with respect to the Software, and we can use, disclose, reproduce, license and otherwise distribute and exploit Feedback in any manner without obligation or restriction of any kind on account of intellectual property rights or otherwise. Toast Interactive will treat any Feedback you provide to us as non-confidential and non-proprietary.
10. Device Partners & Applicable Policies
Software is made available for download at the websites of our device partners (“Device Partners”). All Software downloaded by you or on your behalf from the websites of Device Partners shall be subject to this EULA.
Please read the hardware instruction manual that came with the virtual reality headset you purchased from a Device Partner (a “Partner Headset”) for more information about using the Partner Headset.
Your use of the websites of our Device Partners and/or download of Software from such websites may also be subject to additional terms and conditions made available by Device Partners, including but not limited to the following policies of current Device Partners:
Oculus
● Supplemental Meta Platforms Technologies Privacy Policy
● Supplemental Meta Platforms Technologies Terms of Services
Steam
● Steam Subscriber Agreement
● Privacy Policy Agreement
VivePort
● Terms of Use
● Privacy Policy
PlayStation
● PSN Terms of Service
● PSN Privacy Policy
11. Governing Law
This EULA shall be governed by the laws of the State of Delaware, United States of America, without regard to its rules on conflicts or choice of law. Each party submits to the exclusive jurisdiction of the courts of the State of California, United States of America, in relation to any proceedings that may be brought at any time relating to this EULA. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this EULA.
12. Arbitration Clause & Class Action Waiver – APPLICABLE TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW
Any dispute, claim or controversy arising out of or relating to this EULA or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this EULA to arbitrate, shall be determined by arbitration in Los Angeles, California, United States of America, before one arbitrator. The language to be used in the arbitral proceedings will be English. If the dispute, claim or controversy exceeds $250,000, the arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (the “Rules”), and if not, the arbitration shall be administered by JAMS pursuant to the Rules and in accordance with the Expedited Procedures or similar process set forth in the Rules. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
In any arbitration arising out of or related to this EULA, the arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator determines a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration.
YOU AND TOAST INTERACTIVE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims and may not otherwise preside over any form of a representative or class proceeding.
YOU AND TOAST INTERACTIVE EACH HEREBY WAIVE THE RIGHT TO A TRIAL BY JURY FOR DISPUTES ARISING OUT OF OR RELATED TO THIS EULA, AND THIS WAIVER APPLIES REGARDLESS OF THE TYPE OF DISPUTE, WHETHER PROCEEDING UNDER CLAIMS OF CONTRACT OR TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR ANY OTHER THEORY.
13. Changes to this EULA
This EULA and any additional terms and conditions applicable to your relationship with Toast Interactive contain the entire agreement between the parties about its or their subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this EULA and has no further effect. You warrant that you have not relied on any representation made by Toast Interactive which has not been stated expressly in this EULA.
We may revise and update this EULA from time to time at our sole discretion. All changes are effective immediately when we post them. If you continue to use Software, following the posting of a revised EULA, you are accepting and agreeing to the changes. You are expected to check this page from time to time, so you are aware of any changes.
In the future we may offer additional services, features and functionalities for Software. Any future release, update or addition to the functionality of Software is subject to this EULA.
14. Force Majeure
You agree that Toast Interactive is not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, pandemics and epidemics, labor shortages (including lawful and unlawful strikes), embargoes, postal disruption, communication disruption, failure or shortage of infrastructure, shortage of materials, or any other event beyond our control.
15. General Terms
Should any provision of this EULA be held invalid or unenforceable, such provision will be modified to the extent necessary to render it enforceable without losing its intent or severed from this EULA if no such modification is possible, and other provisions of this EULA will remain in full force and effect. A waiver by either party of any term or condition of this EULA or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. This EULA and any rights and licenses granted hereunder, may not be transferred, delegated, or assigned by you, but may be assigned, delegated, or transferred by Toast Interactive without restriction. Any attempted assignment, subcontract, delegation, or transfer by you in violation of the foregoing will be null and void. This EULA shall be binding upon and inure to the benefit of each of the parties and the parties’ respective successors and permitted assigns. Certain of our licensors and suppliers may be third-party beneficiaries of this EULA and have the right to enforce this EULA against you.
16. Your Comments and Concerns
If you have any questions about Software, the Game, or this EULA, please contact us at .au
End User License Agreement
Version 2.1 – Last Updated: March 11th 2024
This End User License Agreement (“EULA”) includes terms of use between a user of our Software (“you” or “your”), and Toast VR PTY LTD, an Australian Proprietary Limited company (trading as, “Toast Interactive,” “we,” “our,” and their derivatives). This EULA governs your use of our virtual reality software (the “Software”), including but not limited to Max Mustard (the “Game”). Software is made available for download by Device Partners as described in more detail in Section 10 below.
THIS EULA CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT APPLY TO YOU AND YOUR ACCESS, REGISTRATION FOR, DOWNLOAD AND USE OF SOFTWARE. PLEASE READ THEM CAREFULLY. BY ACCESSING, REGISTERING FOR, DOWNLOADING OR USING OUR SOFTWARE, YOU AGREE TO BE BOUND BY THIS EULA AND OUR PRIVACY POLICY. IF YOU DO NOT AGREE TO BE BOUND BY THIS EULA AND THE PRIVACY POLICY, PLEASE DO NOT ACCESS, REGISTER FOR, DOWNLOAD AND/OR USE SOFTWARE.
1. Acceptance of this EULA
In order to agree to this EULA, you need to be at least the age of majority in the place you are domiciled (a legal adult); otherwise, if you are 13 years or older, your parent or guardian can agree to this EULA with you where (a) they guarantee your compliance with its stipulations, and (b) either you or your parent or guardian must have the power and capacity to enter a binding contract with us and not be barred from doing so under any applicable laws. This EULA continues to apply to you at any time in connection with your access and/or use of Software.
Eligibility for Children. Software is available only for individuals aged 13 years or older. If you are 13 or older but are under the age of majority, then you agree to review this EULA (and all Health and Safety Guidelines associated with the Game) with your parent or guardian to make sure that both you and your parent or guardian understand and agree to this EULA. You agree to have your parent or guardian review and accept this EULA in their own capacity and on your behalf. If you are a parent or guardian agreeing to this EULA for the benefit of a child, then you agree to and accept full responsibility for that child’s obligations and agree to and acknowledge our rights in relation to all.
2. Health and Safety is Your Responsibility When Using the Game
The Game is an immersive virtual reality experience. Players may experience disorientation, loss of balance, elevated heart rate, vertigo/dizziness, lightheadedness, seizures, blurred/double vision, nausea, panic attacks, anxiety, impaired decision-making ability, and/or other physical or psychological reactions or injury.
IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, YOU SHOULD DIAL “911” IMMEDIATELY (IN THE UNITED STATES) OR CONTACT EMERGENCY MEDICAL RESPONDENTS IN YOUR APPLICABLE JURISDICTION.
TOAST INTERACTIVE DOES NOT TAKE RESPONSIBILITY FOR ANY INJURY OR DAMAGE ASSOCIATED WITH YOUR USE OF THE SOFTWARE OR DUE TO YOUR ACTIONS WHILE USING SOFTWARE. YOU EXPRESSLY AGREE THAT YOUR USE OF SOFTWARE IS AT YOUR SOLE RISK AND THAT YOU ARE RESPONSIBLE AND LIABLE FOR YOUR SAFETY (AND THE SAFETY OF ANY OTHER PERSONS USING YOUR PARTNER HEADSET) WHEN USING THE SOFTWARE.
3. Privacy Policy
All personal information we collect through Software is subject to our Privacy Policy at , which is hereby incorporated by reference into this EULA. Please email us at .au if you have any questions about our practices concerning how we collect, use, protect, store, disclose, and otherwise process your personal information.
4. Limited License to Use Software
Toast Interactive hereby grants you a personal, non-transferable, non-exclusive license to use Software on Partner Headsets for personal, non-commercial purposes in accordance with the terms of this EULA.
You are not permitted to:
− Edit, alter, modify, adapt, translate or otherwise change the whole or any part of Software nor permit the whole or any part of Software to be combined with or become incorporated in any other software (other than Partner Headsets), nor decompile, disassemble or reverse engineer Software or attempt to do any such things.
− Reproduce, copy, distribute, resell or otherwise use Software for any commercial purpose.
− Access or use Software to build a similar or competitive product or application.
− Use Software for your own commercial benefit, or allow a third party to use Software for their commercial benefit.
− Remove or destroy any copyright notices or other proprietary markings contained on or in any portion of Software.
− Use Software in a manner that violates any applicable local, state, provincial, national, or international law.
− Violate any requirements, procedures, policies, or regulations of our Device Partners.
− Use Software for any purpose that Toast Interactive considers in its reasonable discretion to be a breach of this EULA.
You are solely responsible for complying with all laws, rules, and regulations applicable to you when you use Software. You agree to comply with the above license restrictions and usage requirements (“Restrictions”) and agree not to assist or permit any person to engage in any conduct that does not comply with the above conduct. Any use of Software in violation of these Restrictions is prohibited and may result in our suspension or termination of your right to access and use Software and may possibly expose you to legal action and damages. In the event that Toast Interactive believes that you have breached any of the above Restrictions, Toast Interactive reserves the right to suspend and/or permanently terminate your access to and use of Software at our sole discretion.
5. DISCLAIMERS
SOFTWARE, INFORMATION, CONTENT, MATERIALS, AND PRODUCTS INCLUDED IN OR OTHERWISE MADE AVAILABLE TO YOU THROUGH SOFTWARE ARE PROVIDED BY TOAST INTERACTIVE ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TOAST INTERACTIVE DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, NEITHER TOAST INTERACTIVE NOR ANY OF ITS EMPLOYEES, OFFICERS, AGENTS OR REPRESENTATIVES WARRANT THAT SOFTWARE, INFORMATION, CONTENT, MATERIALS, AND PRODUCTS INCLUDED IN OR OTHERWISE MADE AVAILABLE TO YOU THROUGH SOFTWARE, OR ELECTRONIC COMMUNICATIONS SENT FROM TOAST INTERACTIVE REGARDING SOFTWARE, WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT SOFTWARE OR OUR SERVER INFRASTRUCTURE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT SOFTWARE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
TOAST INTERACTIVE CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY LOSS, DAMAGES OR LIABILITIES ARISING FROM THE FAILURE OF ANY TELECOMMUNICATIONS INFRASTRUCTURE, OR THE INTERNET, OR FOR YOUR MISUSE OF ANY ADVICE, IDEAS, INFORMATION, CONTENT, INSTRUCTIONS OR GUIDELINES ACCESSED THROUGH THE SOFTWARE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
6. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL TOAST INTERACTIVE, ITS AFFILIATES, LICENSORS, AND SERVICE PROVIDERS, AND ITS AND THEIR RESPECTIVE MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSORS, SUPPLIERS, SUCCESSORS, AND ASSIGNS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH (A) THIS EULA OR (B) YOUR USE OF OR INABILITY TO USE SOFTWARE OR ITS CONTENTS, INCLUDING BUT NOT LIMITED TO ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY, PROPERTY DAMAGE, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL TOAST INTERACTIVE’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH (A) THIS EULA, OR (B) YOUR USE OF OR INABILITY TO USE SOFTWARE OR ITS CONTENTS EXCEED ONE THOUSAND US DOLLARS (USD $1,000.00). THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TOAST INTERACTIVE AND YOU.
7. General Release
You are solely responsible for all claims, injuries (including death), illnesses, damages, liabilities, and costs (“Liabilities”) suffered by you or any third party as a result of your use of Software. To the maximum extent permitted by applicable law, you hereby release the Toast Interactive Parties (as defined below) from any and all responsibility and liability for the foregoing.
YOU HEREBY WAIVE THE PROVISIONS OF ANY APPLICABLE LAW LIMITING OR PROHIBITING A GENERAL RELEASE. IF YOU ARE A CALIFORNIA, U.S. RESIDENT, YOU ACKNOWLEDGE AND HEREBY EXPRESSLY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
You hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to the release of any unknown or unsuspected claims you may have against the Toast Interactive Parties pertaining to the subject matter of this section.
8. Indemnification
You agree to defend, indemnify, and hold harmless Toast Interactive, its affiliates, licensors, and service providers, and its and their respective members, officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns (the “Toast InteractiveParties”) from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to (i) your violation of this EULA, (ii) your use or inability to use Software, and any use of Software by a third party using Software on or through your Partner Headset, (iii) your failure to comply with any applicable laws and regulations (including any privacy laws), or (iv) your violation of any third party right, including without limitation any copyright, property or privacy right. You shall not settle any such claim without the written consent of the applicable indemnified party.
9. Content
Toast Interactive Content. Except for Third Party Content (as defined below), all information and materials contained on or within Software, including, but not limited to, text, graphics, HTML, look and feel, images, illustrations, designs, photographs, audio, video, names, product names or descriptions, icons, typefaces, software (both source and object code), format, queries, algorithms and written and other materials and information (collectively, “Toast Interactive Content”), as well as their selection and arrangement, and all intellectual property and other rights relating to Toast Interactive Content, as between you and Toast Interactive, are solely and exclusively owned by Toast Interactive. You will not delete or alter any copyright, trademark or other proprietary rights notices from Toast Interactive Content.
Third Party Content. Software may contain proprietary information and materials licensed or provided to Toast Interactive by third parties in connection with Toast Interactive’s provision of Software and/or other business purposes (collectively, “Third Party Content”). Third Party Content is the copyrighted work of its owner, who expressly retains all right, title and interest in and to the Third Party Content, including, without limitation, all intellectual property rights therein and thereto.
All statements and/or opinions expressed in the Third Party Content are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Toast Interactive. We are not responsible, or liable to you or any third party, for the content or accuracy of any Third Party Content provided by any third parties.
No Reliance. Any reliance you place on the Game and other Software, Toast Interactive Content and Third Party Content is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other user of Software or your Partner Headset. THE GAME AND OTHER SOFTWARE MAY PROVIDE GENERAL INFORMATION ABOUT HEALTH AND SAFETY. SUCH INFORMATION IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT PROVIDED BY A DOCTOR OR OTHER QUALIFIED HEALTHCARE PROFESSIONAL. YOU SHOULD NOT DISREGARD MEDICAL ADVICE OR DELAY SEEKING MEDICAL CARE BASED ON ANYTHING PRESENTED ON OR THROUGH THE GAME OR OTHER SOFTWARE. TOAST INTERACTIVE IS NOT ENGAGED IN RENDERING MEDICAL OR SIMILAR PROFESSIONAL SERVICES, AND INFORMATION AND ADVICE MADE AVAILABLE ON OR THROUGH THE GAME AND OTHER SOFTWARE SHOULD NOT BE USED FOR DIAGNOSING A HEALTH PROBLEM OR DISEASE.
Your Feedback. We welcome feedback, comments and suggestions for improvements to the Software (“Feedback”). You can submit Feedback by emailing us at .au. You grant us a nonexclusive, irrevocable, worldwide, royalty-free, fully paid up right and license to use any Feedback provided by you to us with respect to the Software, and we can use, disclose, reproduce, license and otherwise distribute and exploit Feedback in any manner without obligation or restriction of any kind on account of intellectual property rights or otherwise. Toast Interactive will treat any Feedback you provide to us as non-confidential and non-proprietary.
10. Device Partners & Applicable Policies
Software is made available for download at the websites of our device partners (“Device Partners”). All Software downloaded by you or on your behalf from the websites of Device Partners shall be subject to this EULA.
Please read the hardware instruction manual that came with the virtual reality headset you purchased from a Device Partner (a “Partner Headset”) for more information about using the Partner Headset.
Your use of the websites of our Device Partners and/or download of Software from such websites may also be subject to additional terms and conditions made available by Device Partners, including but not limited to the following policies of current Device Partners:
Oculus
● Supplemental Meta Platforms Technologies Privacy Policy
● Supplemental Meta Platforms Technologies Terms of Services
Steam
● Steam Subscriber Agreement
● Privacy Policy Agreement
VivePort
● Terms of Use
● Privacy Policy
PlayStation
● PSN Terms of Service
● PSN Privacy Policy
11. Governing Law
This EULA shall be governed by the laws of the State of Delaware, United States of America, without regard to its rules on conflicts or choice of law. Each party submits to the exclusive jurisdiction of the courts of the State of California, United States of America, in relation to any proceedings that may be brought at any time relating to this EULA. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this EULA.
12. Arbitration Clause & Class Action Waiver – APPLICABLE TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW
Any dispute, claim or controversy arising out of or relating to this EULA or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this EULA to arbitrate, shall be determined by arbitration in Los Angeles, California, United States of America, before one arbitrator. The language to be used in the arbitral proceedings will be English. If the dispute, claim or controversy exceeds $250,000, the arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (the “Rules”), and if not, the arbitration shall be administered by JAMS pursuant to the Rules and in accordance with the Expedited Procedures or similar process set forth in the Rules. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
In any arbitration arising out of or related to this EULA, the arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator determines a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration.
YOU AND TOAST INTERACTIVE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims and may not otherwise preside over any form of a representative or class proceeding.
YOU AND TOAST INTERACTIVE EACH HEREBY WAIVE THE RIGHT TO A TRIAL BY JURY FOR DISPUTES ARISING OUT OF OR RELATED TO THIS EULA, AND THIS WAIVER APPLIES REGARDLESS OF THE TYPE OF DISPUTE, WHETHER PROCEEDING UNDER CLAIMS OF CONTRACT OR TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR ANY OTHER THEORY.
13. Changes to this EULA
This EULA and any additional terms and conditions applicable to your relationship with Toast Interactive contain the entire agreement between the parties about its or their subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this EULA and has no further effect. You warrant that you have not relied on any representation made by Toast Interactive which has not been stated expressly in this EULA.
We may revise and update this EULA from time to time at our sole discretion. All changes are effective immediately when we post them. If you continue to use Software, following the posting of a revised EULA, you are accepting and agreeing to the changes. You are expected to check this page from time to time, so you are aware of any changes.
In the future we may offer additional services, features and functionalities for Software. Any future release, update or addition to the functionality of Software is subject to this EULA.
14. Force Majeure
You agree that Toast Interactive is not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, pandemics and epidemics, labor shortages (including lawful and unlawful strikes), embargoes, postal disruption, communication disruption, failure or shortage of infrastructure, shortage of materials, or any other event beyond our control.
15. General Terms
Should any provision of this EULA be held invalid or unenforceable, such provision will be modified to the extent necessary to render it enforceable without losing its intent or severed from this EULA if no such modification is possible, and other provisions of this EULA will remain in full force and effect. A waiver by either party of any term or condition of this EULA or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. This EULA and any rights and licenses granted hereunder, may not be transferred, delegated, or assigned by you, but may be assigned, delegated, or transferred by Toast Interactive without restriction. Any attempted assignment, subcontract, delegation, or transfer by you in violation of the foregoing will be null and void. This EULA shall be binding upon and inure to the benefit of each of the parties and the parties’ respective successors and permitted assigns. Certain of our licensors and suppliers may be third-party beneficiaries of this EULA and have the right to enforce this EULA against you.
16. Your Comments and Concerns
If you have any questions about Software, the Game, or this EULA, please contact us at .au