This Agreement, together with any additional terms provided to You in using the Software (collectively, “Additional Terms”), which may be amended from time to time, is a legal agreement between Survios, Inc., a Delaware corporation (or based on where You live, one of its affiliates)(“Survios”) and You (an individual or entity) that governs Your access to and use of the Software. Your continued access to or use of the Software following the posting of revised terms means that You accept and agree to any revised terms. You are expected to check this page each time you access or use the Software so that You are aware of any changes, as they are binding on You. If there is a conflict between the terms in this Agreement and the Additional Terms, the terms in the Additional Terms will govern. You represent and warrant that You are of legal age and otherwise competent to be contractually bound by this Agreement. If You accept this Agreement on behalf of Your employer, You represent and warrant that You have full legal authority to bind Your employer to this Agreement. If You do not have the requisite authority, You may not accept this Agreement or use the Software on behalf of Your employer.
LICENSE GRANT. During the term of this Agreement and conditioned upon Your full compliance with all the terms and conditions of this Agreement, Survios grants to You a limited, non-sublicensable, non-transferable, non-exclusive, license to install and use Downloaded Software only in object code form on Your computer and/or (if applicable) Your other authorized device; in each case only for the Permitted Uses. “Permitted Uses” means use of the Software in accordance with the terms herein to help You setup, manage, and operate Downloaded Software (i) for use through Steam, (ii) for a purpose expressly approved by Survios in writing, and (ii) for a Commercial Purpose in connection with operating a VR Arcade. “Commercial Purpose” means a purpose that is undertaken for profit, monetary compensation, or commercial advantage. “VR Arcade” means a physical establishment containing one or more virtual reality experiences or games that can be played by a customer for a fee. Licensee may use marketing materials provided by the Licensor without alteration. If You desire to launch new advertising or promotional materials which utilize the Software or alter materials provided by Survios, You will submit these to Survios for its prior written approval, which will be given or denied at Survios’ sole discretion. You agree to comply with any requirements established by Survios concerning the style, design, display, marketing and use of the Software and/or any marketing materials provided by Survios; to correctly use the trademark symbol ™ or registration symbol® with every use of the Software and/or any marketing materials provided by Survios as Survios shall from time-to-time instruct.
LICENCE LIMITATIONS. The license granted in Section 2 is conditioned upon Your compliance with the following limitations. You are not permitted to work around any technical limitations in the Software or to use the Software in an attempt to, or in conjunction with any device, program or service designed to, circumvent technical measures employed to control access to, or the rights in the Software; reverse engineer, decompile, decipher, disassemble or otherwise attempt to access source code of the Software, except and only to the extent that applicable law expressly permits, despite this limitation; modify or make any derivative works of the Software, in whole or in part; remove any proprietary notices or labels on the Software or any copy thereof; use the Software to infringe the rights of Survios, its affiliates, or any third party or in any way that does not comply with all applicable laws; publish, rent, lease, lend, or sublicense the Software; distribute, transfer, disclose or otherwise provide the Software to any third party; or make any use of the Software in any manner not permitted by this Agreement.
RESERVATION OF RIGHTS AND OWNERSHIP. Survios, its affiliates and its licensors and suppliers own the title, copyright, and other intellectual property rights in the Software (and all rights embodied therein) and reserve all rights not expressly granted to You in this Agreement. The Software is protected by copyright and other intellectual property laws and treaties. The Software may contain third-party software that is subject to open source or third-party license terms (“Third-Party Terms”). Your use of the Software is subject to any Third-Party Terms included in the Software. In the event of a conflict between this Agreement and any Third-Party Terms, this Agreement will govern. Survios, the Survios logo and other Survios product and service names referenced in the Software are the trademarks of Survios and its affiliates. Any other company names, product names, service names and logos referenced in connection with the Software may be the trademarks of their respective owners.
SUPPORT AND UPDATES. Survios has no obligation to and may not provide support for the Software. You agree that Survios may automatically check Your version of the Software and may automatically send Your computer or device updates to the Software.
TERMINATION. This Agreement will automatically terminate upon Your breach of any of the terms and conditions of this Agreement. Survios may terminate this Agreement at any time, with or without notice, at its sole and absolute discretion. If terminated, You must immediately destroy or disable all copies of the Software, and the following Sections of this Agreement will survive, Sections 4 and 8 through 13.
DISCLAIMER OF WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE” AND THE ENTIRE RISK OF USE AND PERFORMANCE, REMAINS WITH YOU. SURVIOS AND ITS SUPPLIERS AND LICENSORS DO NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY AND HEREBY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT. IN PARTICULAR, SURVIOS, ITS SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT THE SOFTWARE: (A) WILL MEET YOUR REQUIREMENTS OR WILL WORK WITH ANY THIRD-PARTY SOFTWARE, HARDWARE, APPLICATIONS OR THIRD-PARTY SERVICES; (B) WILL BE AVAILABLE OR PROVIDED ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; (C) OR ANY INFORMATION OR CONTENT OBTAINED THROUGH IT WILL BE ACCURATE, COMPLETE, OR RELIABLE; OR (D) OR THAT ANY DEFECTS OR ERRORS THEREIN WILL BE CORRECTED. ALL CONTENT AND OTHER MATERIAL YOU DOWNLOAD OR OBTAIN THROUGH THE SOFTWARE IS ACCESSED AT YOUR OWN RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS THEREFROM. INSTALLATION OF THE SOFTWARE MAY AFFECT THIRD-PARTY SOFTWARE, APPLICATIONS, DEVICES OR SERVICES. YOU MAY HAVE ADDITIONAL RIGHTS UNDER YOUR LOCAL LAWS THAT THESE TERMS CANNOT CHANGE. IN PARTICULAR, TO THE EXTENT LOCAL LEGISLATION IMPLIES STATUTORY TERMS WHICH CANNOT BE EXCLUDED, THOSE TERMS ARE DEEMED INCORPORATED INTO THIS AGREEMENT BUT SURVIOS’ LIABILITY FOR A BREACH OF THOSE STATUTORY IMPLIED TERMS IS LIMITED IN ACCORDANCE WITH AND TO THE EXTENT PERMISSIBLE UNDER THAT LEGISLATION.
DISCLAIMER OF CERTAIN DAMAGES. IN NO EVENT WILL SURVIOS OR ANY SUPPLIER OR LICENSOR BE LIABLE FOR ANY CONSEQUENTIAL; SPECIAL; INCIDENTAL; INDIRECT; PUNITIVE DAMAGES; FOR LOSS OF PROFITS, BUSINESS, GOODWILL, ANTICIPATED SAVINGS, OR USE; LOSS OR CORRUPTION OF DATA, CONFIDENTIAL INFORMATION, OR OTHER INFORMATION; BUSINESS INTERRUPTION; PERSONAL INJURY; PROPERTY DAMAGE; LOSS OF PRIVACY; FAILURE TO MEET ANY DUTY OF GOOD FAITH OR REASONABLE CARE; NEGLIGENCE; AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER, ARISING OUT OF, BASED ON, RESULTING FROM OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE SOFTWARE, EVEN IF SURVIOS OR ANY SUPPLIER OR LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGE, LOSS, OR LIABILITY FROM INTENTIONAL ACTS (INCLUDING FRAUD, FRAUDULENT MISREPRESENTATION, AND FAILURE TO DISCLOSE DEFECTS), PRODUCT LIABILITY, OR FOR DEATH OR PERSONAL INJURY. NOTHING IN THIS SECTION 8 WILL BE INTERPRETED AS EXCLUDING LIABILITY WHICH CANNOT UNDER APPLICABLE LAW BE EXCLUDED IN THOSE JURISDICTIONS. IF YOU LIVE, OR ARE OTHERWISE SUBJECT TO THE LAWS IN ONE OF THOSE JURISDICTIONS, ANY STATUTORY ENTITLEMENT AVAILABLE TO YOU WILL BE DEEMED LIMITED TO THE EXTENT (IF AT ALL) PERMISSIBLE UNDER THAT LAW AND, IF LIMITATION IS NOT PERMITTED, THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 8 MAY NOT APPLY TO YOU.
Limitation of Liability and Exclusive Remedies. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND TO THE EXTENT THEY ARE NOT EXCLUDED OR DISCLAIMED UNDER THIS SECTION 9, SURVIOS’ AND ITS SUPPLIERS’ AND LICENSORS’ MAXIMUM, AGGREGATE LIABILITY TO YOU, AND YOUR EXCLUSIVE REMEDY UNDER THIS AGREEMENT FOR ANY AND ALL DAMAGES, INJURIES, AND LOSSES ARISING FROM ANY AND ALL CLAIMS AND CAUSES OF ACTION ARISING OUT OF, BASED ON, RESULTING FROM OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE SOFTWARE WILL BE TO RECOVER THE ACTUAL DAMAGES YOU INCUR BASED UPON REASONABLE RELIANCE ON THE SOFTWARE UP TO ONE HUNDRED DOLLARS (U.S. $100.00).
THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT, THE SOFTWARE, CONTENT, OR THE PROVISION OR FAILURE TO PROVIDE SUPPORT WILL NOT ENLARGE OR EXTEND THE LIMITATION OF MONEY DAMAGES. EXCEPT FOR THE EXCLUSIVE REMEDY IN THE FOLLOWING SENTENCE, THESE ACTUAL MONEY DAMAGES WILL BE YOUR SOLE AND EXCLUSIVE REMEDY.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGE, LOSS, OR LIABILITY FROM INTENTIONAL ACTS (INCLUDING FRAUD, FRAUDULENT MISREPRESENTATION, AND FAILURE TO DISCLOSE DEFECTS), PRODUCT LIABILITY, OR FOR DEATH OR PERSONAL INJURY. NOTHING IN THIS SECTION 9 WILL BE INTERPRETED AS EXCLUDING LIABILITY WHICH CANNOT UNDER APPLICABLE LAW BE EXCLUDED IN THOSE JURISDICTIONS. IF YOU LIVE, OR ARE OTHERWISE SUBJECT TO THE LAWS IN ONE OF THOSE JURISDICTIONS, ANY STATUTORY ENTITLEMENT AVAILABLE TO YOU WILL BE DEEMED LIMITED TO THE EXTENT (IF AT ALL) PERMISSIBLE UNDER THAT LAW AND, IF LIMITATION IS NOT PERMITTED, THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 9 MAY NOT APPLY TO YOU.
INDEMNIFICATION. You will defend, indemnify, and hold Survios, its directors, officers, employees, agents, partners, suppliers, and licensors harmless and will keep them indemnified from any third party claim or demand, including reasonable attorneys’ fees, relating to or arising from (a) Your unauthorized use of the Software; (b) any violation by You of this Agreement; or (c) Your violation of any another party’s rights or applicable law.
RESTRICTED USE. The Software was designed for systems that do not require fail-safe performance. You may not use the Software in any device or system in which a malfunction of the Software would result in foreseeable risk of injury or death to any person. This includes operation of nuclear facilities, aircraft navigation or communication systems and air traffic control.
GOVERNING LAW AND JURISDICTION FOR RESOLVING DISPUTES. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. The United States Federal Arbitration Act (the “FAA”) applies to the agreement to arbitrate. Except as preempted by FAA, the law of the State of California, without reference to its choice of laws principles, shall govern this Agreement. Notwithstanding the foregoing, the laws of Your state of residence in the U.S.A., (or if You live outside of the U.S.A., the law of the country where You live), will apply to any tort claims and/or any claims under any consumer protection statutes.
AGREEMENT TO ARBITRATE DISPUTES:
Binding Arbitration. You and Survios agree (a) to waive Your and Survios’s respective rights to have any and all disputes or claims arising from or related to this Agreement or the use or performance of the Software (collectively, “Disputes”) resolved in a court, and (b) to waive Your and Survios’ respective rights to a jury trial. Instead, You and Survios agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
No Class Arbitrations, Class Actions or Representative Actions. You and Survios agree that any Dispute arising out of or related to this Agreement, is personal to You and Survios and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action, or any other type of representative proceeding. You and Survios agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, You and Survios agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
Notice; Informal Dispute Resolution. You and Survios agree that each party will notify the other party in writing of any arbitrable or small claims Dispute not less than thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Your notice must include (a) Your name, postal address, telephone number, the email address You use or used for Your Survios account or, if different or if You have no Survios account, an email address at which You can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that You are seeking. Our notice to You will be sent electronically to the email address You use or used for Your Survios account, where available, and will include (a) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that we are seeking. If You and Survios cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either You or Survios may, as appropriate and in accordance with this Agreement, commence an arbitration proceeding or, to the extent specifically provided for above, file a claim in small claims court.
Process. You and Survios agree that any Dispute must be commenced or filed by You or Survios within one (1) year of the date the Dispute arose, otherwise the underlying claim is permanently barred (which means that You and Survios will no longer have the right to assert such claim regarding the Dispute). You and Survios agree that the arbitration shall be according to the American Arbitration Association Commercial Arbitration Rules applicable to consumer disputes (the “AAA Rules”), except insofar as those rules would be inconsistent with any part of this Agreement, including without limitation the agreement to arbitrate. For claims of $5,000 or less, You may decide whether You would prefer to have the arbitration decided based only on documents submitted to the arbitrator, or by a hearing in person or by phone. The arbitration shall be held in Los Angeles County, California and the state and federal courts located in Los Angeles County, California will have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
Authority of Arbitrator. As limited by the FAA, this Agreement and the applicable AAA rules, the arbitrator will have the authority to grant any remedy that would otherwise be available in court, provided that the arbitrator’s award may not exceed, in form or amount, the relief that a United States District Court could order under the Agreement; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by this Agreement. Notwithstanding the AAA Rules, any decisions concerning arbitrability of a particular dispute, including but not limited to whether a class arbitration is permitted by this Agreement, shall be resolved by a proper court in Los Angeles County, California, rather than an arbitrator. Any dispute concerning the enforceability of this agreement to arbitrate, or any part thereof, shall also be resolved by a proper court in Los Angeles County, California, rather than an arbitrator.
Rules of AAA. The rules of AAA and additional information about AAA are available on the AAA website (https://www.adr.org/aaa/faces/aoe/gc/consumer). By not opting out of this agreement to arbitrate as specified below, You either (a) acknowledge and agree that You have read and understand the AAA Rules, or (b) waive Your opportunity to read the AAA Rules and any claim that the AAA Rules are unfair or should not apply for any reason.
Applicability of Agreement to Arbitrate. IF THE PROHIBITION ON CLASS ARBITRATIONS SET FORTH ABOVE IS DEEMED TO BE UNENFORCEABLE, THEN THE AGREEMENT TO ARBITRATE WILL NOT APPLY.
RIGHT TO OPT OUT: This agreement to arbitrate disputes will apply unless You notify Survios in writing postmarked no later than 30 calendar days of first obtaining the Software that You reject the agreement to arbitrate. You must include in Your notice of opt-out (a) Your name and address; (b) the date on which You first obtained the Software. If You opt out of the agreement to arbitrate, the other terms in the Agreement will still apply to You.
Special Rules Related to Disputes in the Peoples Republic of China. Sections 4 though 8 of this Section 12 shall not apply to any Dispute with respect to Software sold in the Peoples Republic of China (each such Dispute, a “China Dispute”). Each China Dispute shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (“HKIAC”) under the HKIAC Administered Arbitration Rules in force when the notice of arbitration is submitted (the “HKIAC Rules”). The Parties agree that the arbitration shall be conducted as an Expedited Procedure in accordance with Article 41.2 of the HKIAC Rules. The seat of arbitration for each China Dispute shall be Hong Kong; provided, however, that hearings shall be held in Los Angeles, California. The number of arbitrators for each China Dispute shall be one. The parties specifically exclude the application of Article 11.3 of the HKIAC Rules; under no circumstances shall HKIAC appoint a sole arbitrator who is of the same nationality as either party. The arbitration proceedings associated with each China Dispute shall be conducted in English. For the avoidance of double, Sections 1 through 3 of this Section 12 shall apply to each China Dispute.
1. Waiver of Jury Trial: IF A DISPUTE BETWEEN YOU AND SURVIOS PROCEEDS IN COURT RATHER THAN OR IN ADDITION TO IN ARBITRATION, YOU AND SURVIOS UNCONDITIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTER CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
2. Governing Law: The Federal Arbitration Act (the “FAA”) applies to the agreement to arbitrate. Except as preempted by FAA, the law of the State of California, without reference to its choice of laws principles, shall govern this Agreement.
3. STEAM: You acknowledge and agree that we may make the game available to You through the digital distribution platform STEAM®, which is owned by Valve Corporation (“STEAM®”). Accordingly, You will need a STEAM® account to activate your license, and your use of the Software will also be subject to the STEAM® Subscriber Agreement and/or Terms of Service as my be effective from time-to-time (the “STEAM® Terms”). Survios makes no representation or warranty to You that your use of the Software is in compliance with the STEAM® Terms. Upon 3 business days’ written request, You will provide Survios each STEAM® user name associated with each STEAM® key for the Software that is issued to you by Survios.
4. Severability: Except as specifically provided above, if any provision of this Agreement is held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the enforceability of the remainder of the Agreement.
5. Legal Effect. This Agreement does not change Your rights under the laws of the country in which You reside if the laws of Your country do not permit it to legally change Your rights. You may have rights under the laws of the country in which You reside that are in addition to, or different from, the rights set forth in this Agreement.
6. Compliance with Law; Export Regulations. You will comply with all national and international laws, rules and regulations that apply to the Software and Your use of the Software, including the U.S. Export Administration Regulations (to which the Software is subject), as well as end-user, end-use, and destination restrictions issued by U.S. or other governments. You acknowledge that the Software is of U.S. origin.
7. General. The section titles in this Agreement are used solely for the parties’ convenience and have no legal or contractual significance. Survios’ failure to act with respect to a breach by You does not waive its rights to act with respect to subsequent or similar breaches. No waiver of any provision of this Agreement will be effective unless it is in a signed writing, and no waiver will constitute a waiver of any other provision(s) or of the same provision on another occasion. If a court of competent jurisdiction holds any term, covenant or restriction of this Agreement to be illegal, invalid or unenforceable, the remaining terms, covenants and restrictions will remain in full force and effect and will in no way be affected, impaired or invalidated. You may not assign, transfer or sublicense Your rights (if any) under this Agreement. This Agreement will be binding upon all of Survios’ successors and assigns.
8. Entire Agreement. This Agreement, and any Additional Terms, comprise the entire agreement for the Software. Internet-based services and support services (if any) may be subject to additional terms.
9. Contact Information. If You have any questions about this Agreement, please direct all notices and correspondence to:
If to Survios
Attn: General Counsel
3249 S. La Cienega Blvd
Los Angeles, CA 90016