END USER LICENSE AGREEMENT
READ THIS ENTIRE END USER LICENSE AGREEMENT (“AGREEMENT”) BEFORE DOWNLOADING, INSTALLING, USING OR PLAYING THE GAME OR ANY RELATED SOFTWARE (COLLECTIVELY, THE "GAME").
THIS AGREEMENT CONTAINS IMPORTANT TERMS THAT AFFECT YOUR LEGAL RIGHTS. BY DOWNLOADING, INSTALLING, USING OR PLAYING THE GAME, YOU AGREE TO BE BOUND BY ALL THE TERMS OF THIS AGREEMENT AND THE MWMi PRIVACY POLICY. YOU FURTHER ACKNOWLEDGE AND UNDERSTAND AND AGREE THAT MWMi WILL PROCESS YOUR PERSONAL DATA IN ACCORDANCE WITH THE MWMi PRIVACY POLICY (“PRIVACY POLICY”) INCORPORATED INTO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS OF THIS AGREEMENT AND THE PRIVACY POLICY, PLEASE DO NOT (AND YOU ARE NOT PERMITTED TO) DOWNLOAD, INSTALL, USE OR PLAY THE GAME.
THIS AGREEMENT IS BETWEEN YOU AND REALITY ONE HOLDINGS, LLC (DOING BUSINESS AS MWM IMMERSIVE), A DELAWARE LIMITED LIABILITY COMPANY ("MWMi").
THE GAME IS LICENSED, NOT SOLD, TO YOU.
YOUR USE OF THE GAME IS SUBJECT TO AND YOU MUST REVIEW THE PHOTO SENSITIVITY AND VR GAME WARNING AND WAIVER, WHICH IS INCORPORATED INTO THIS AGREEMENT.
MWMi ACKNOWLEDGES THAT THERE ARE CERTAIN GUARANTEES, WARRANTIES, TERMS AND CONDITIONS (INCLUDING IN RESPECT OF REFUNDS AND RETURNS, UNFAIR TERMS AND CONSUMER RIGHTS) IMPOSED BY THE LAWS OF CERTAIN JURISDICTIONS RELATING TO THE SUPPLY OF GOODS, SERVICES AND DIGITAL CONTENT WHICH THE LAWS EXPRESSLY PROVIDE MAY NOT BE EXCLUDED, RESTRICTED OR MODIFIED OR MAY ONLY BE LIMITED TO A CERTAIN EXTENT (COLLECTIVELY, "STATUTORY OBLIGATIONS"). NOTHING IN THIS AGREEMENT EXCLUDES, RESTRICTS OR MODIFIES THE STATUTORY OBLIGATIONS OTHERWISE THAN ACCORDING TO SUCH LAWS.
IN ORDER TO PLAY THE GAME AND/OR ACCESS CERTAIN SERVICES RELATED TO THE GAME, IF ANY (“SERVICES”), YOU MAY BE REQUIRED TO HAVE AND MAINTAIN A VALID AND ACTIVE USER ACCOUNT (“ACCOUNT") WITH MWMi AND WITH A PLATFORM PROVIDER (AS SUCH TERM IS DEFINED BELOW). THE ACCOUNT AND SERVICES MAY ALSO BE GOVERNED BY ADDITIONAL OR SUPPLEMENTAL TERMS AND CONDITIONS (“SUPPLEMENTAL TERMS”). SUCH SUPPLEMENTAL TERMS, IF ANY, WILL FORM A PART OF THIS AGREEMENT AND ARE INCORPORATED HEREIN.
This Agreement contains a binding individual arbitration and class action waiver provision in Section 15 (Dispute Resolution, Arbitration and Class Action Waiver) (“Disputes Provision”) that affects your rights under this Agreement with respect to any Disputes (as defined below in the Disputes Provision) between you and MWMi, and requires you and MWMi to resolve Disputes in binding, individual arbitration (and not in court) if (a) you reside in a jurisdiction outside of the European Economic Area, United Kingdom, Japan or Brazil, or (b) you do not reside in another jurisdiction (i) that prohibits binding consumer arbitration or (ii) where consumer arbitration is not enforceable, in each case, as a result of Statutory Obligations (collectively, the foregoing are “Excluded Jurisdictions”). If you are subject to the Disputes Provision, you have a right to opt out of the binding individual arbitration and class action waiver as provided below in the Disputes Provision.
Any and all uses of the Game are governed by the terms of this Agreement. The Game are made available and distributed solely for use by authorized end users according to the terms of this Agreement. Any use, reproduction, modification or distribution of the Game not expressly authorized by the terms of this Agreement is expressly prohibited. Any rights not granted to you in this Agreement are reserved by MWMi.
All software programs and any and all files that are delivered to you or made available to you by MWMi, directly or indirectly through an MWMi authorized reseller or distributor (via on-line access, download or other transmission means), including any "patcher", "installer", and any updates and modifications to such software programs, and any and all copies and derivative works of such software programs (collectively, with the Game Client (defined below) is included in the definition of "Game" as used in this Agreement) is the copyrighted work of MWMi and its affiliates.
1. LIMITED LICENSE; RESTRICTIONS AND OWNERSHIP
a. If you agree to this Agreement, you may, as applicable, download, install and use the software (hereafter referred to as the "Game Client") on your computer, console or other device, including as an example only and not by limitation, a virtual reality game platform (hereafter referred to as a "Game Platform") for the sole purpose of playing the Game. The Game is licensed to you as a single product. Its component parts may not be separated for use on more than one Game Platform. Your license confers no title or ownership in the Game or copies thereof. As used herein, any owner of a Game Platform, any operator of a Game Platform and any distribution service enabled on a Game Platform is referred to as a “Platform Provider”).
b. Subject to your compliance with all the terms and conditions in this Agreement, MWMi hereby grants, and you hereby accept, a limited, non-transferable, non-exclusive license (i) to download, install or use the Game Client on one or more Game Platforms owned by you or under your legitimate control for your non-commercial entertainment purposes only, and (ii) to use the Game Client solely as part of the Services. The license in this clause is granted by MWMi and not by any Platform Provider; provided, however, you may also be required to register or create an account with a Platform Provider in order to use the Game or Services.
c. Subject to the Statutory Obligations (i) this Agreement does not give you any right to obtain reissues or replacements of the Game at any time and MWMi is not obliged to supply software updates, upgrades, or expansions for the Game, or even to operate or continue to support the Game for an indefinite period and (ii) MWMi may change, modify, suspend, or discontinue any aspect of the Game at any time and MWMi may also impose limits on certain features or restrict your access to parts or all of the Game and/or Services without notice or liability.
d. In all cases, the licenses granted to you in this Agreement will terminate upon the earlier of termination of this Agreement or termination of your Account, if any, with MWMi.
2. SOFTWARE UPDATES; THIRD PARTY SOFTWARE.
a. MWMi may deploy or provide patches, updates, improvements, upgrades and modifications to the Game ("Updates") that must be installed by you in the manner described by MWMi in its discretion before you may continue to play the Game. All such Updates are part of the Game for purposes of this Agreement, the licenses granted to you and other restrictions set forth in this Agreement. The terms of this Agreement will govern any Updates provided by MWMi that replace and/or supplement the original Game, unless any such Update is accompanied by a separate license agreement in which case the terms of that license agreement will govern.
b. MWMi may allow the use of certain third party user interfaces and other third party software in the Game and/or Game Client for purposes such as game-play analysis, data collection, anti-cheating and anti-hacking. Any such third party interfaces or software will be implemented in accordance with the Privacy Policy.
3. LIMITATIONS AND RESTRICTIONS.
a. The Game and/or certain features that are part of Services offered by MWMi may only be playable online. In such cases, a persistent Internet connection (which is not supplied by MWMi) is required to play the Game or access these features. You are responsible for all costs and expenses associated with acquiring any hardware, software (e.g., Internet browsers) or other products or services required to play the Game or access Services.
b. Any use of the Game in violation of the limitations set forth in this Agreement will be regarded as an infringement of MWMi's copyrights in and to the Game and will be a breach of this Agreement. You agree that you will not and will not assist any other person, under any circumstances, to do any of the following:
(i) distribute, publicly perform or display, sell, transmit, publish, edit, reproduce, sublicense, rent, lease, loan or otherwise transfer the Game (in whole or in part), including without limitation, any access keys;
(ii) modify, adapt, translate, reverse engineer, attempt to derive source code from, disassemble, decompile, or create derivative works based on the Game (or any part thereof); provided, however, you may make one (1) copy of the Game Client and the manuals that accompany it (if any) for archival purposes only and you may install the relevant Game Client on one or more Game Platforms owned by you or under your legitimate control as described in Section 1 above;
(iii) remove any proprietary notices or labels on the Game; or attempt in any manner to circumvent any security measures designed to control access to the Game or any part thereof;
(iv) use cheats, automation software (bots), hacks, mods or any other unauthorized third-party software designed to modify the Game or adversely impact any other persons playing of the Game;
(v) exploit the Game or any of its parts, including without limitation the Game Client, for (A) any commercial purpose; or (B) performing in-game services in exchange for payment outside the Game, e.g., power-leveling;
(vi) use any unauthorized software that intercepts, "mines", or otherwise collects information from or through the Game or the Services, including without limitation, any software that reads areas of computer memory used by the Game to store information about a character or the game environment;
(vii) modify or cause to be modified any files that are a part of the Game Client in any way not expressly authorized by MWMi;
(viii) host, provide or develop matchmaking services for the Game or intercept, emulate or redirect the communication protocols used by MWMi in any way, for any purpose, including without limitation, unauthorized play over the Internet, network play, or as part of content aggregation networks;
(ix) facilitate, create or maintain any unauthorized connection to the Game or Services, including without limitation (A) any connection to any unauthorized server that emulates, or attempts to emulate, the Services; and (B) any connection using programs or tools not expressly approved by MWMi;
(x) take any action or upload, post, transmit, promote, or distribute any illegal content in connection with the Game or Services;
(xi) take any action or upload, post, transmit, promote, or distribute any content that infringes or violates any third party rights;
(xii) engage in, take any action associated with, or participate in any type of child solicitation, grooming behavior, pedophilia, or predatory behavior in any form;
(xiii) harass, stalk, threaten, embarrass, spam or do anything else to another user of the Game that is unwanted, such as for example only, repeatedly sending unwanted messages or making personal attacks or statements about race, sexual orientation, religion, or heritage;
(xiv) take any action or upload, post, transmit, distribute, or communicate your or any person's real-world personal information;
(xv) impersonate any person or entity, including, but not limited to, MWMi, MWMi's partners' or affiliates' employees, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(xvi) take any action, organize, transmit any content, effectuate or participate in any activity, group, or guild that is harmful, tortuous, abusive, hateful (including "hate speech"), racially, ethnically, religiously or otherwise offensive, obscene, threatening, bullying, vulgar, sexually explicit, defamatory, libelous, infringing, invasive of personal privacy or publicity rights, encourages conduct that would violate a law or is, in a reasonable person's view, objectionable and/or deemed to be in the sole discretion of MWMi inappropriate;
(xvii) promote, upload, transmit, encourage or take part in any activity involving hacking, cracking, phishing, taking advantage of exploits or cheats and/or distribution of counterfeit software and/or virtual currency or virtual items or limits or prevents access to the Game by others;
(xviii) or take any action or upload, post, transmit, promote, or distribute any content that may contain a Trojan horse, virus, worm, spyware, time bombs, cancelbots, corrupted data or other computer programs that you do not own or have permission to freely distribute that may damage, interfere with, intercept, expropriate or disrupt the Game.
Any attempt to do any of the foregoing is a breach of this Agreement and may be a violation of intellectual property rights in the Game. If you breach these restrictions, you may be subject to prosecution and damages.
c. You agree that (i) no Platform Provider nor any of its affiliates is responsible for providing support or other services related to the Game or Services under this Agreement and (ii) nothing in this Agreement is intended to govern or change, in any way, your relationship with a Platform Provider pursuant to any agreements entered into between you and such Platform Provider.
4. OWNERSHIP OF THE GAME.
a. MWMi and its licensors are and will continue to be the owner of all right, title, and interest in and to the Game and the Services, including without limitation all intellectual property rights and moral rights in and to the Game and all copies thereof (including without limitation any titles, software programs and code, Game-related themes, characters, character names, character likenesses, stories, dialog, catch phrases, locations, concepts, artwork, character inventories, structural, landscape and other designs in the Game, animations, sounds, musical compositions and recordings, audio-visual effects, storylines, methods of operation, and any related documentation). The Game is protected by the copyright laws of the United States, international treaties and conventions, and other laws
b. You shall take no action inconsistent with MWMi’s right, title or ownership in the Game and intellectual property rights therein.
c. The Game may contain materials licensed by third parties, and the licensors of those materials may enforce their rights in the event of any violation of this Agreement. You acknowledge and agree that you have no interest, monetary or otherwise, in any feature or content contained in the Game. This Section 4 will survive the termination of this Agreement for any reason.
5. COLLECTION AND USE OF DATA.
a. YOU ACKNOWLEDGE YOU HAVE READ AND UNDERSTOOD THE PRIVACY POLICY WHICH EXPLAINS HOW WE MAY COLLECT, USE AND DISCLOSE DATA ABOUT YOU (INCLUDING PERSONAL DATA). IN PARTICULAR MWMi WILL USE YOUR DATA (INCLUDING PERSONAL DATA) TO FACILITATE PRODUCT SUPPORT, DEVELOPMENT AND IMPROVEMENT, TO TAILOR AND CUSTOMIZE YOUR EXPERIENCES AND UNDERSTAND WHICH MWMi PRODUCTS YOU ARE USING, AS WELL AS TO PROVIDE OTHER SERVICES TO YOU, AND IF APPLICABLE, TO OPERATE THE SERVICES.
b. YOU FURTHER ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD OUR COOKIE POLICY AND AGREE THAT WE MAY USE COOKIES, WEB BEACONS AND OTHER ANALYTIC TECHNOLOGIES (HEREIN, COLLECTIVELY "COOKIES"), INCLUDING THOSE PROVIDED BY THIRD PARTIES, TO COLLECT, USE, STORE AND TRANSMIT TECHNICAL AND OTHER INFORMATION REGARDING YOUR GAME PLATFORM, (INCLUDING MAC ADDRESS UNIQUE DEVICE ID OR OTHER IDENTIFIER), IP ADDRESS, GEO-LOCATION, DEVICE MAKE AND MODEL, OPERATING SYSTEM, SOFTWARE AND APPLICATIONS, GAME PLAY/USAGE DATA, THIRD PARTY ACCOUNT AUTHORIZATION DATA, SESSION DATA, BROWSER IDENTIFIERS, CONNECTION TYPE AND CARRIER INFORMATION. YOU AGREE TO OUR USE OF COOKIES AS DESCRIBED HEREIN AND IN MORE DETAIL IN OUR COOKIE POLICY, WHICH EXPLAINS YOUR OPTIONS ON OUR USE OF COOKIES.
c. You also acknowledge and understand that MWMi offers the Game and conducts business in many countries. As a result, personal information collected from or submitted by you through a Game or otherwise may be transferred to and stored on servers and equipment located in a destination outside your country of residence in accordance with applicable law. The servers and equipment on which your data is stored and processed may be owned and operated by third parties with whom MWMi has contracted to receive, store and process your personal information. MWMi and those third parties that MWMi has designated, may further transfer, store and process your personal information on servers and equipment located in other countries in accordance with applicable law. You should be aware that the data protection laws of other countries may not be the same as the data protection laws of your country of residence. This Section 5 shall survive the termination of this Agreement for any reason.
6. MONITORING AND UPDATES.
a. If you request any technical support from MWMi, subject to your consent, MWMi may remotely access and review the Game Platform onto which you have loaded the Game Client for purposes of providing technical support and debugging. MWMi may update the Game remotely including without limitation the Game Client residing on your Game Platform, and you hereby grant to MWMi your consent to deploy and apply such Updates.
b. You understand and agree that (i) any and all Game related character and other data may be stored and may be resident on MWMi computers and servers and (ii) any and all communications that you make within the Game (including, but not limited to, messages solely directed at another player or group of players) traverse through MWMi computers and servers and may or may not be monitored by MWMi or MWMi's agents. You expressly consent to such monitoring of such communications that you send and receive; provided, however, MWMi has no affirmative obligation to monitor such communications. The Privacy Policy (and any Supplemental Terms may) include further terms and conditions applicable to the accessing, monitoring and recording of activities and communications on and relating to the Game and Service, including but not limited to when MWMi may report incidents to law enforcement and other authorities. All personal data collected and processing by MWMi as part of the activities set out in this Section 6 will be collected and processing accordance with the Privacy Policy and the terms of the Agreement.
7. TERMINATION.
This Agreement starts at the time you accept the Agreement and it will remain effective until terminated. You may terminate this Agreement at any time by (a) permanently destroying all copies of the Game in your possession or control and (b) removing the Game Client from your hard drive, browser and/or operating system. Subject to the Statutory Obligations, MWMi may terminate this Agreement at any time for any reason or no reason (including at such time as MWMi elects to discontinue offering the Game). Upon termination by MWMi for any reason, all licenses granted in this Agreement with respect to the Game that is the subject of this Agreement shall immediately terminate and you must immediately do (a) and (b) above. Termination for no reason will be communicated to you by MWMi.
8. EXPORT RESTRICTIONS.
The Game may not be exported, re-exported, downloaded or otherwise transferred (a) to or into (collectively, an "Export") any country which requires an Export license or which the United States government prohibits Exports, including any such country subject to economic sanctions or (b) to any person or entity prohibited from receiving goods or services of U.S. origin. You represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list. This Section 8 will survive the termination of this Agreement for any reason.
9. WARRANTY.
a. If you, the original purchaser, purchased the Game on a physical media (such as a disc) your use of the Game is subject to the limited warranty included with the manual or other packaging material that came with your purchase.
b. TO THE EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO THE STATUTORY OBLIGATIONS, MWMi, ITS LICENSORS, LICENSEES AND RESELLERS DO NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES TO YOU REGARDING THE GAME OR SERVICE, INCLUDING, BUT NOT LIMITED TO, THE QUALITY, FUNCTIONALITY, AVAILABILITY, ACCESSIBILITY OR PERFORMANCE OF THE GAME OR SERVICES. THE GAME AND SERVICES ARE PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS.
c. IN SOME JURISDICTIONS CERTAIN WARRANTIES MAY AUTOMATICALLY ARISE OR APPLY UNLESS THESE WARRANTIES ARE DISCLAIMED. SUBJECT TO THE STATUTORY OBLIGATIONS, MWMi AND ITS LICENSORS, LICENSEES AND RESELLERS DISCLAIM AND EXCLUDE ALL SUCH WARRANTIES EITHER EXPRESS, IMPLIED OR STATUTORY, IF AND TO THE EXTENT PERMITTED BY LAW, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, DATA ACCURACY, OR ACCURACY OF ANY OTHER INFORMATION OR CONTENT, SYSTEM INTEGRATION, AND QUIET ENJOYMENT WITH RESPECT TO THE GAME AND SERVICES AND ALL IMPLIED WARRANTIES THAT ARISE FROM COURSE OF DEALING OR USAGE OF TRADE.
d. THE FOLLOWING PROVISIONS OF THIS SECTION 9 ONLY APPLY TO THE EXTENT THEY ARE NOT CONTRARY TO THE STATUTORY OBLIGATIONS:
NO WARRANTY IS GIVEN ABOUT THE QUALITY, FUNCTIONALITY, COMPLIANCE WITH SPECIFICATIONS, SUITABILITY, OPERABILITY, CONDITION, NON-INTERFERENCE, WORKMANSHIP, AVAILABILITY OR PERFORMANCE OF THE GAME OR SERVICES, ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON AN MWMi WEBSITE. MWMi DOES NOT ASSUME LIABILITY FOR ANY INABILITY BY YOU TO ACCESS, RECEIVE, PLAY OR USE THE GAME OR SERVICES. MWMi DOES NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS, RECEIVE, PLAY OR USE THE GAME OR SERVICES AT TIMES OR LOCATIONS OF YOUR CHOOSING, OR THAT MWMi WILL HAVE ADEQUATE CAPACITY FOR SUPPORTING THE GAME OR SERVICES AS A WHOLE OR IN ANY SPECIFIC GEOGRAPHIC AREA.
IN STATES OR JURISDICTIONS THAT PROHIBIT THE DISCLAIMER OF IMPLIED WARRANTIES OR THE EXCLUSION OF CERTAIN WARRANTIES, MWMi SHALL DISCLAIM AND EXCLUDE WARRANTIES TO THE MAXIMUM EXTENT PERMITTED BY LAW AND THE DURATION OF ANY SUCH WARRANTY THAT MAY NOT BE DISCLAIMED SHALL BE FOR THE SHORTEST DURATION PERMITTED BY APPLICABLE LAW.
With respect to software that is enabled for use on or over the Internet, you acknowledge that MWMi is not responsible for the Internet or whether it should continue to exist in its present form or whether or not a government or governmental agency, either foreign or domestic, will control, regulate or disband the Internet. Use of the Internet is at your sole risk.
a. THIS SECTION 9 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT FOR ANY REASON.
10. LIMITATION OF LIABILITY, REIMBURSEMENT.
b. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND SUBJECT TO THE STATUTORY OBLIGATIONS, IN NO EVENT SHALL MWMi (AND ITS AFFILIATES), OR ANY OF ITS LICENSORS, LICENSEES OR RESELLERS BE LIABLE FOR ANY (I) SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHER INDIRECT DAMAGES, (II) THIRD PARTY CLAIMS, OR (III) LOSS OR DAMAGE TO ANY SYSTEMS, HARDWARE OR SOFTWARE, RECORDS OR DATA, REGARDLESS OF LEGAL THEORY, EVEN IF ADVISED OF OR AWARE OF THE POSSIBILITY OF ANY SUCH DAMAGES AND EVEN IF A LIMITED REMEDY IN THIS AGREEMENT FAILS ITS ESSENTIAL PURPOSE.
c. SOME JURISDICTIONS (AND STATUTORY OBLIGATIONS) DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY. ACCORDINGLY, SOME OF THE ABOVE MAY NOT APPLY TO YOU.
THE FOLLOWING PROVISIONS OF THIS SECTION 10 ONLY APPLY TO THE EXTENT THEY ARE NOT CONTRARY TO THE STATUTORY OBLIGATIONS.
d. YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE INVOLVING MWMi (AND ITS AFFILIATES), OR ANY OF ITS LICENSORS, LICENSEES OR RESELLERS ARISING OUT OF OR RELATING TO THIS AGREEMENT IS TO STOP USING, PLAYING, RECEIVING OR ACCESSING THE GAME OR SERVICES.
e. YOU AGREE THAT MWMi (AND ITS AFFILIATES), OR ANY OF ITS LICENSORS, LICENSEES OR RESELLERS ARE NOT LIABLE TO YOU FOR ANY ACT OR FAILURE TO ACT BY THEM OR ANY OTHER PERSON REGARDING CONDUCT, COMMUNICATION OR CONTENT ON OR IN A GAME OR SERVICES.
f. IN NO CASE SHALL THE AGGREGATE CUMULATIVE LIABILITY OF THAT MWMi (AND ITS AFFILIATES), OR ANY OF ITS LICENSORS, LICENSEES OR RESELLERS AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, CONTRACTORS, AGENTS, OR VENDORS (COLLECTIVELY, "MWMi PARTIES") FOR DAMAGES TO YOU ARISING OUT OF OR RELATING TO THIS GAME OR ANY SERVICE, OR YOUR ACCESS TO, OR YOUR PLAY, RECEIPT OR USE OF A GAME OR ANY SERVICE EXCEED USD$100.00.
g. SUBJECT TO SECTION 10.f ABOVE, MWMi WILL COMPENSATE YOU FOR ANY REASONABLY FORESEEABLE LOSS OR DAMAGE YOU CAN SHOW THAT YOU HAVE SUFFERED AS A RESULT OF (I) MWMi’s FAILURE TO CARRY OUT ITS OBLIGATIONS UNDER THIS AGREEMENT TO A REASONABLE STANDARD OR (II) MWMi’s BREACH OF ANY DUTIES IMPOSED ON MWMi BY LAW (INCLUDING, BUT NOT LIMITED TO, IF MWMi CAUSES DEATH OR PERSONAL INJURY BY MWMi'S NEGLIGENCE), UNLESS THE FAILURE OR BREACH IS ATTRIBUTED TO: (I) YOUR OWN FAULT; (II) A THIRD PARTY UNCONNECTED WITH MWMi'S PERFORMANCE OF THIS AGREEMENT (FOR INSTANCE PROBLEMS DUE TO OTHER USERS OF THE SERVICES, COMMUNICATIONS NETWORK PERFORMANCE, CONGESTION, AND CONNECTIVITY OR THE PERFORMANCE OF YOUR EQUIPMENT OR SOFTWARE); OR (III) ANY OTHER EVENTS WHICH NEITHER MWMi, MWMi AFFILIATES, OR SUPPLIERS COULD HAVE FORESEEN OR FORESTALLED EVEN IF MWMi OR THEY HAD TAKEN REASONABLE CARE. AS THE SERVICES ARE FOR CONSUMER USE ONLY, MWMi AND MWMi AFFILIATES WILL NOT BE LIABLE FOR ANY BUSINESS OR COMMERCIAL LOSSES OF ANY KIND OR NATURE, SUCH AS LOST DATA, LOST PROFITS OR BUSINESS INTERRUPTION.
h. THIS SECTION 10 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT FOR ANY REASON.
11. CHANGES TO THE AGREEMENT.
MWMi may replace this Agreement with new versions (each a "New Agreement") over time as the Game and the law evolve. You will be notified immediately upon the introduction of a New Agreement and you will be given an opportunity to review and accept the New Agreement. New Agreements will not be applied retroactively. Your continued use of the Game, Game Client or Service after the introduction of a New Agreement will be deemed as your acceptance of any modified terms in a New Agreement. If you do not accept the New Agreement, then you will not be permitted to continue playing or using the Game.
12. INDEMNITIES.
a. If (i) you misuse the Game or any Services or breach this Agreement; (ii) you improperly or illegally access, play, receive or use the Game or Services, or (iii) any actions or omissions by you in connection with the Game or your access to Services result in any of the MWMi Parties incurring any liabilities, damages, losses, costs and expenses (including without limitation attorneys' fees and court costs), then you agree to reimburse any such MWMi Party from all such liabilities, damages, losses, costs and expenses.
b. If a third party initiates legal proceedings against any MWMi Party for purposes of Section 12.a.(i) – (iii) above, then MWMi reserves the right to control the defense and settlement of such third party proceeding, and you agree to reimburse MWMi for the cost of the defense, including, but not limited to, reasonable and documented attorneys' fees.
c. This Section 12 shall survive the termination of this Agreement for any reason.
13. GOVERNING LAW; JURISDICTION AND VENUE.
a. If you reside in North America, this Agreement and all Disputes shall be governed by the laws of the State of California, USA, excluding its conflicts of laws rules and principles that would result in another state's or country's laws applying to this Agreement or any Disputes, and excluding the United Nations Convention on Contracts for the International Sale of Goods, the Uniform Computer Information Transactions Act ("UCITA"), and any laws based on UCITA. If you reside in North America and have opted out of the arbitration agreement described in the Disputes Provision by the Opt-Out Deadline (as defined in Section 15.e below), then you and MWMi agree only to commence or prosecute any action, suit, proceeding or claim arising out of or related to this Agreement in the state or federal courts located in Los Angeles County, State of California. Each party hereby irrevocably consents to the jurisdiction and venue of such courts in connection with any such action, suit, proceeding or claim, and waives any argument regarding inconvenient forum.
b. If you reside outside of North America, then this Agreement and all Disputes shall be governed by the laws of England and Wales, excluding its conflicts-of-law rules and principles that would result in another state or country's laws applying to this Agreement or any Disputes, and excluding the United Nations Convention on Contracts for the International Sale of Goods. If you reside outside of North America and have opted out of the arbitration agreement described in the Disputes Provision by the Opt-Out Deadline (as defined in Section 15.e below) or if you reside in an Excluded Jurisdiction, then you and MWMi agree only to commence or prosecute any action, suit, proceeding or claim arising out of or related to this Agreement in the courts located in London, England. Each party hereby irrevocably consents to the jurisdiction and venue of such courts in connection with any such action, suit, proceeding or claim, and waives any argument regarding inconvenient forum.
c. Notwithstanding the Disputes Provision, you agree that MWMi shall be entitled to injunctive relief, specific performance and equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as MWMi may otherwise have under applicable law.
d. This Section 13 will survive the termination of this Agreement for any reason.
14. MISCELLANEOUS.
This Agreement along with the Privacy Policy and the Photo-Sensitivity and VR Game Warning and Waiver constitute and contain the entire agreement between you and MWMi with respect to the subject matter hereof and supersedes any prior oral or written agreements. This Agreement shall coexist with, and shall not supersede, the Privacy Policy. Except as specifically provided in the Disputes Provision, if any part of this Agreement is held invalid or unenforceable, that portion shall be interpreted in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of such part, and the remaining portions of this Agreement shall remain in full force and effect. The failure of MWMi to exercise or enforce any right or provision of this Agreement will not constitute waiver of such right or provision. Any waiver of any provision of this Agreement will be effective only if in a writing signed by MWMi. You agree that this Agreement and MWMi's enforcement of this Agreement, are not intended to confer and do not confer any rights or remedies upon any person other than you and MWMi. This Section 14 shall survive the termination of this Agreement for any reason.
15. DISPUTE RESOLUTION, ARBITRATION AND CLASS ACTION WAIVER.
a. Generally. This Disputes Provision facilitates the prompt and efficient resolution of any disputes that may arise between you and MWMi. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Disputes Provision (as explained below), which means you would retain your right to file a lawsuit and litigate your disputes in a court, either before a judge or jury. Certain of the terms below in this section reference "class actions" or "other collective disputes or representative actions." If you reside in a jurisdiction that does not permit class actions or other collective disputes or representative actions, such terms will not apply to you.
b. Waiver of Rights. Please read this Disputes Provision carefully. It provides that you and MWMi agree that all Disputes (defined below) between you and MWMi shall be resolved by binding arbitration (referred from time to time as the "arbitration agreement"). In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in court, before a judge or jury, and/or participate in or be represented in a case filed in court by others (including, but not limited to, class actions, collective actions or representative actions). Except as otherwise expressly provided in this Disputes Provision or applicable law, entering into this arbitration agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this arbitration agreement and can award the same damages and relief as a court (including, but not limited to, attorneys' fees, if otherwise authorized by applicable law). The arbitrator may not award damages disclaimed by this Agreement.
c. Disputes; Exceptions. For the purpose of this Disputes Provision, "MWMi" collectively refers to Reality One Holdings, LLC, its subsidiary and affiliate companies, and each of their respective officers, directors, employees, and agents. The term " Dispute" means any dispute, claim, or controversy between you and MWMi regarding or related to any aspect of your relationship with MWMi, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes, but not limited to, the validity, enforceability or scope of this Disputes Provision (with the exception of the enforceability of the Class Action Waiver in clause k. below). "Dispute" is to be given the broadest possible meaning that will be enforced; provided, however, the following are exceptions to and are not included in the definition of Dispute (“Dispute Exceptions”): disputes relating to MWMi’s intellectual property (for example, trademarks, trade dress, domain names, trade secrets, copyrights, or patents). You and MWMi agree that the parties will submit Dispute Exceptions to courts having jurisdiction over such matters.
YOU AND MWMi EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING INDIVIDUAL (AND NOT CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE ACTION) ARBITRATION RATHER THAN IN COURT OR IN ANY OTHER PROCEEDING IN ACCORDANCE WITH THIS DISPUTES PROVISION.
d. Pre-Claim Resolution. For all Disputes, whether pursued in court or arbitration, you must first give MWMi an opportunity to resolve the Dispute. You must commence this process by mailing written notification to MWMi, Attn: Legal Department, 1999 Avenue of the Stars, Suite 1500, Los Angeles, California 90067 USA. That written notification must include (i) your name, (ii) your address, (iii) a written description of your Dispute, and (iv) a description of the specific relief you seek. If MWMi does not resolve the Dispute to your satisfaction within forty-five (45) days after receipt of your written notification, You may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
e. Opt-Out of Arbitration. Notwithstanding the above, you or MWMi may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute is initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU ENTER INTO THIS AGREEMENT ("Opt-Out Deadline"). You may opt out by mailing written notification to MWMi, Attn: Legal Department, 1999 Avenue of the Stars, Suite 1500, Los Angeles, California 90067 USA. Your written notification must include (i) your name, (ii) your address, and (iii) a clear statement that you do not wish to resolve disputes through arbitration. Your decision to opt-out will have no adverse effect on your relationship with MWMi. You are responsible for ensuring the MWMi's receipt of your opt out notice, and you therefore may wish to send a notice by means that provide a written receipt. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
f. Location of Arbitration. If this provision applies and the Dispute is not resolved as provided above ("Pre-Arbitration Claim Resolution") either you or MWMi may initiate arbitration proceedings. If you reside in North America, JAMS ("JAMS"), www.jamsadr.org, will arbitrate all Disputes. If you do not reside in North America, the London Court of International Arbitration ("LCIA"), https://www.lcia.org/, will arbitrate all Disputes. The arbitration taking place before the LCIA will be conducted in English before a single arbitrator. In either case, the arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class, collective, consolidated, or representative arbitration. The arbitrator shall have the exclusive authority to decide all issues with respect to this Disputes Provision, including, but not limited to whether any particular claim asserted by you or MWMi falls within the scope of this Disputes Provision and any alleged ambiguities in this Disputes Provision.
g. Additional Provisions Regarding Arbitration Rules. In Disputes before JAMS, the JAMS Streamlined Arbitration Rules and Procedures will apply for Disputes of less than US$50,000, and the JAMS Comprehensive Arbitration Rules will apply for Disputes involving US$50,000 or more, and in either instance the JAMS Optional Expedited Arbitration Procedures shall apply. The LCIA rules will apply to Disputes before that entity. This provision governs in the event it conflicts with the applicable arbitration rules of JAMs or LCIA. Based on the class action waiver set forth in clause k. below, under no circumstances will class action procedures or rules apply to the arbitration.
i. Arbitral Award. The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law and this Agreement, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
j. Location of Arbitration. If you reside in North America, arbitration will take place in Los Angeles, California USA or if agreed to by MWMi, the judicial district that includes the address you provide in your written notification of Pre-Arbitration Claim Resolution. If you do not reside in North America, the arbitration shall take place in London, England.
k. Payment of Costs; Recovery of Costs. MWMi will advance all arbitration filing fees and arbitrator's costs and expenses upon your written request given prior to the commencement of the arbitration or as otherwise required by applicable law; provided, however, the foregoing is subject to reimbursement as set forth herein. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded by the arbitrator as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with MWMi as provided in the provisions of this Disputes Provision and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney's fees and costs as determined by the arbitrator. If the arbitrator determines that the claims you assert in arbitration are frivolous, you agree to reimburse MWMi for all cost and expenses advanced and paid by MWMi that you would have otherwise been obligated to pay under the applicable arbitration rules.
l. Class Action Waiver. Any arbitration proceedings initiated pursuant to this Disputes Provision will be conducted only on an individual basis and not in a class, collective, consolidated or representative action or as a member of a class, collective, consolidated or representative action. If you choose to pursue your Dispute in court by opting out of this provision, as specified above, this class action waiver will not apply to you. Neither you, nor any other user of the Game or any Service can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
m. Waiving Right to Trial. You understand and agree that by entering into this Agreement, you and MWMi are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Disputes Provision, you and MWMi might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
m. Disputes Regarding This Provision. If any party disagrees about whether this Disputes Provision (or any portion thereof), including without limitation the provisions relating to arbitration, class action waiver, and opting out) can be enforced or whether it applies to the Dispute, the parties agree that the arbitrator will decide upon such matters. In addition, if you or MWMi brings a claim in court that should be arbitrated, or any party refuses to arbitrate a claim that should be arbitrated, any other party can ask a court to force the parties to go to arbitration to resolve the claim (i.e., compel arbitration). You and MWMi may also ask a court to halt a court proceeding (i.e., stay the court proceedings) while an arbitration proceeding is ongoing.
I hereby acknowledge that I have read and understand all the terms and conditions in this Agreement and agree that by clicking "Agree", installing the Game Client or otherwise playing the Game, I am acknowledging my agreement to be bound by all the terms and conditions of this Agreement.
PHOTO-SENSITIVITY AND VR GAME WARNING AND WAIVER
PHOTOSENSITIVITY WARNING. A VERY SMALL PERCENTAGE OF INDIVIDUALS MAY EXPERIENCE EPILEPTIC SEIZURES OR BLACKOUTS WHEN EXPOSED TO CERTAIN VISUAL IMAGES, SUCH AS FOR EXAMPLE ONLY, LIGHT PATTERNS OR FLASHING LIGHTS. EXPOSURE TO CERTAIN PATTERNS OR BACKGROUNDS ON A COMPUTER, TELEVISION OR OTHER SCREEN, OR WHILE PLAYING VIDEO GAMES, MAY INDUCE EPILEPTIC SEIZURES OR BLACKOUTS IN THESE INDIVIDUALS.
THESE CONDITIONS MAY INDUCE PREVIOUSLY UNDETECTED EPILEPTIC SYMPTOMS, BLACKOUTS, OR SEIZURES IN PERSONS WHO HAVE NO HISTORY OF PRIOR SEIZURES OR EPILEPSY. IF YOU, ANYONE IN YOUR FAMILY, OR ANYONE IN YOUR HOUSEHOLD, HAVE AN EPILEPTIC CONDITION, HAVE HAD SEIZURES OF ANY KIND, OR SEIZURE SYMPTOMS, CONSULT A DOCTOR PRIOR TO PLAYING THE GAME OR USING THE SERVICES. IF YOU EXPERIENCE ANY OF THE FOLLOWING SYMPTOMS WHILE PLAYING THE GAME, IMMEDIATELY DISCONTINUE USE AND CONSULT YOUR PHYSICIAN BEFORE RESUMING PLAY: DIZZINESS, ALTERED VISION, EYE OR MUSCLE TWITCHES, JERKING OR SHAKING OF ARMS OR LEGS, LOSS OF AWARENESS, DISORIENTATION, CONFUSION, ANY INVOLUNTARY MOVEMENT, OR CONVULSIONS.
VIRTUAL REALITY: HEALTH AND SAFETY PRECAUTIONS AND DISCLAIMERS
If the Game provides for virtual reality gameplay and/or the use of third party virtual reality headsets and/or related equipment or peripherals, the following health and safety precautions and disclaimers apply. Failing to review and adhere to the health and safety precautions set forth below and the precautions given by the manufacturer of your virtual reality headset and/or related equipment or peripherals may cause damage to property, personal injury to you or others, or death.
As with all virtual reality games, please also carefully read and follow all health and safety precautions from your virtual reality headset manufacturer and/or related equipment or peripherals before use.
Generally, virtual reality headsets and/or related equipment or peripherals are not recommended for children under the age of 12.
Please read the following carefully before playing
Please note that certain people are susceptible to various symptoms and conditions when playing a game with virtual reality headsets, including:
epileptic seizures or loss of consciousness;
altered vision;
motion sickness, dizziness, disorientation or nausea; and/or
repetitive motion injuries and eye strain.
Immediately stop playing if you do not feel well or if you experience any of the above symptoms.
In any event, we strongly recommend that you take reasonable breaks from gameplay for any type of game every 10 to 15 minutes and that you do not play for excessive overall periods.
If you are pregnant or if you have any pre-existing medical condition, you should talk with a physician to obtain professional advice before playing the Game.
You should not play the game under the influence of alcohol or drugs or while using prescription or non-prescription medication.
When playing with a virtual reality headset or other headset make sure the play area is clear of objects and people that could be bumped into during gameplay. Ensure you are in a safe environment and not near structures or objects that could cause tripping hazards or other objects or people that may pose a danger to you or them or could be damaged or cause injury during gameplay. Sound volume for the Game should be kept at a low enough level so that you can be aware of your surroundings while playing.
In no event shall the MWMi Parties (as defined below) be liable for any damage to property, injury, or death arising out of the use or misuse of the Game or any virtual reality headset or related equipment and/or peripherals, including, without limitation, arising out of or connected with interactions between you and other people or objects in or around the play area during gameplay.
You understand that misuse of the Game includes (without limitation) violations of any instructions or any warnings set forth on the packaging, documentation, and screen shots for your virtual reality headset or related equipment and/or peripherals, in this warning, or in other documentation accompanying the Game.
Failure to carefully read and follow those instructions and warnings could lead to property damage, injury or death. You expressly assume and accept any and all risks inherent in (or that may be associated with) the use of the Game, and/or of the virtual reality headsets or related equipment and/or peripherals.
When using the virtual reality motion controllers, avoid holding the controller closer than 8 inches from your face or eyes. If the motion controller hits a person or an object, it may cause accidental injury or damage. Before using, check that there is plenty of space around you. Hold the controller firmly to prevent it from slipping out of your hand. Always wear the strap and tighten the strap with the strap lock. When using the controller, grip it firmly to make sure it cannot slip out of your hand. If using a controller that is connected to the virtual reality computing system with a cable, make sure there is enough space for the cable so that the cable will not hit a person or object. Also, take care to avoid pulling the cable out of the virtual reality computing system while using the controller.
Some, but not all, of those risks are discussed in the warnings set forth above or the warnings accompanying the Game and the virtual reality headset or related equipment and/or peripherals. The section on "Limitation of Liability" in the Agreement applies to this warning.
YOU HEREBY RELEASE MWMi (AND ITS AFFILIATES), OR ANY OF ITS LICENSORS, LICENSEES OR RESELLERS AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, CONTRACTORS, AGENTS, OR VENDORS (COLLECTIVELY, “MWMi PARTIES”) FROM ANY AND ALL LIABILITY IN CONNECTION WITH THE GAME AND IN THE EVENT THE GAME IS A VIRTUAL REALITY GAME, THE USE OF A VIRTUAL REALITY HEADSET AND ANY RELATED EQUIPMENT AND/OR PERIPHERALS.