PLEASE READ THE HEALTH AND SAFETY WARNINGS IN SECTION 6 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.
1. Updates and Modifications
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. 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 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.
- Account Registration. In order to access certain features of the Survios Properties 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”).
- 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.
- 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. 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. 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:
- 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;
- 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;
- 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;
- 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;
- 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;
- 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.
- 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;
- 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;
- 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:
- only used for the purpose of achieving the inter-operability of the Survios Properties with another software program;
- not disclosed or communicated to any third party without Survios’s prior written consent; and
- not used to create any software that is the same or similar to the Survios Properties.
- 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;
- 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;
- Breach any technology control or export laws and regulations that apply to the technology used or supported by the Survios Properties;
- 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;
- Use the Survios Properties for any commercial purpose, including, but not limited to, communicating or facilitating any commercial advertisement or solicitation; or
- 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.
3. User Generated Content
3.1. No Obligation to Pre-Screen User Content
- Types of Content. You acknowledge that all information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials (collectively, “Content”), is the sole responsibility of the party from whom such Content originated. This means that you, and not Survios, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available (“Make Available”) through the Survios Properties (“Your Content”), and that you and other Users of the Survios Properties, and not Survios, are similarly responsible for all Content they Make Available through the Survios Properties (“User Content”). Accordingly, Survios assumes no responsibility for the conduct of any User Content.
- No Obligation to Pre-Screen Content. You acknowledge that Survios has no obligation to pre-screen Content (including, but not limited to, User Content), although Survios reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Survios pre-screens, refuses or removes any Content, you acknowledge that Survios will do so for Survios’s benefit, not yours. Without limiting the foregoing, Survios shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
3.2. Public Forums; Your Content
- Public Discourse. The Survios Properties may include interactive features and areas, including various forums, blogs and chat features (“Forums”) where you can submit, post, upload, publish, email, send or otherwise transmit Content, including, but not limited to, your observations and comments on designated topics. Survios cannot guarantee that other Users will not use the ideas and information that you share. Therefore, if you have an idea or information that you would like to keep confidential and/or do not want others to use, do not post it on the Survios Properties. Survios shall have no responsibility to evaluate, use or compensate you for any ideas or information you may choose to submit. When you disclose information or rely on any information in the Forums, you do so at your own risk. Survios reserves the right to, but has no obligation to, monitor the Forums, or any postings or other materials that you or other users transmit or post on the Forums, to alter or remove any such materials, and to disclose such materials and the circumstances surrounding their transmission to any third party in order to operate the Service properly or to comply with legal obligations or governmental requests. Furthermore, you acknowledge that a large volume of information is available in these Forums and that people participating in such Forums may occasionally post messages or make statements, whether intentionally or unintentionally, that are inaccurate, misleading, deceptive, abusive or even unlawful. Survios neither endorses nor is responsible for such messages or statements, or for any opinion, advice, information or other utterance made or displayed in the Forums by you or the other users. The opinions expressed in the Forums reflect solely the opinions of you and/or the other users and may not reflect the opinions of Survios. Survios is not responsible for any errors or omissions in postings, for hyperlinks embedded in messages or for any results obtained from the use of the information contained in the Forums. Under no circumstances will Survios be liable for any loss or damage caused by your reliance on the information in the Forums or your use of the Forums.
- Your Content
- License to Your Content. You hereby grant to Survios an irrevocable, perpetual, transferable, non-exclusive, royalty-free, worldwide license (including the right to sublicense and assign to third party) and right to copy, reproduce, fix, adapt, modify, create derivative works from, manufacture, commercialize, publish, distribute, sell, license, sublicense, transfer, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice, in any way, Your Content as well as all modified and derivative works of Your Content in connection with our provision of the Survios Properties, including marketing and promotions of the Survios Properties.
- Waiver of Moral Rights. Except as prohibited by law, you waive any rights of attribution and/or any moral rights you may have in Your Content, regardless of whether Your Content is altered or changed in any manner.
- Ownership of Your Content. Survios does not claim any ownership rights in Your Content and nothing in these Terms is intended to restrict any rights that you may have to use and exploit Your Content. Survios has no obligation to monitor or enforce your intellectual property rights in or to Your Content.
- Ownership of Other Content. Except with respect to Your Content, you agree that you have no right or title in or to any 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.
- User Interactions
- Interactions with Other Users. You are solely responsible for your interactions with other users of the Survios Properties and any other parties with whom you interact through the Survios Properties. Survios reserves the right, but has no obligation, to become involved in any way with these disputes. You will fully cooperate with Survios to investigate any suspected unlawful, fraudulent or improper activity, including, but not limited to, granting Survios access to any password-protected portions of your Account.
- Release. If you have a dispute with one or more users, you release Survios (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
4. Intellectual Property.
Except with respect to Your Content and User Content, you agree that Survios and its suppliers own all rights, title and interest in the Survios Properties (including but not limited to, 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.
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) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, the Survios Properties; (c) your violation of these Terms; (d) your violation of any rights of another party, including any Users; or (e) 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.
6. 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 6 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. We may update or revise these warnings and instructions, so please review them periodically.
6.1 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.
6.2 General Instructions and Precautions. USE ONLY IN A SAFE ENVIRONMENT. 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.
6.3 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.
6.4 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; lightheadness; 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.
6.5 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.
7.1 Generally. THE APPLICATION AND SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR DOMESTIC AND PRIVATE USE, 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 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.
7.2 Disclaimer of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SURVIOS PROPERTIES. YOU UNDERSTAND THAT SURVIOS DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SURVIOS PROPERTIES.
8. Limitation of Liability
8.1 Exclusion. NOTHING IN THESE TERMS SHALL AFFECT YOUR LEGAL RIGHTS AS A CONSUMER OR EXCLUDE OR LIMIT ANY LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM ANY NEGLIGENCE OF SURVIOS, FRAUD OR FRAUDLENT MISREPRESENTATION OR ANY OTHER LIABILITY WHICH CANNOT BE LEGALLY EXCLUDED OR LIMITED.
8.3 Cap on Damages. SUBJECT TO SECTION 8.1, 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.
8.4 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, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
8.5 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.
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 www.adr.org or by calling the AAA at 1-800-778-7879. 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: Survios, Inc., 3249 S. La Cienega Blvd., Culver City, California 90016 or firstname.lastname@example.org, 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.
9.15 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.
9.16 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), including Your Content. 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 Your Content associated therewith from our live databases. Survios will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. 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.
11.1 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, including Your Content, 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 Your Content 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 of Your Content provided by you or your agent(s) to 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
12.4 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.
12.6 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 §1789.3, 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.