VREAL INC Terms of Service
Last Updated: February 23rd 2018
Welcome, and thank you for your interest in VREAL INC (“VREAL,” “we,” or “us”) and our website at vreal.net, along with our related websites, networks, applications, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and VREAL regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
Arbitration NOTICE. Except for certain kinds of disputes described in the Section entitled “Dispute Resolution and Arbitration,” you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND VREAL ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See “Dispute Resolution and Arbitration.”)
VREAL Service Overview. The Service permits you to: (a) initiate and broadcast streams of live video gameplay (each a “Stream”) as the primary player (“Host”); (b) access a Stream in real time, alone or with other users of the Service; (c) view playbacks of previously-played games or previous Streams (each a “Playback”) (each user of the Service when viewing a Stream or Playback is an “Audience Member,” and collectively, “Audience Members”); and (d) engage with other Audience Members during a Stream or Playback through live chat functionality where and as permitted. Audience Members, Hosts, and other users of the Service are, individually and collectively, “users.” The Service also allows users to upload, transmit, or post User Content (as defined in “User Content Generally” below) on or to the Service, including comments made by Audience Members (in audiovisual and/or text format) and Hosts (in audiovisual and/or text format) during a transmission of a Stream or during a Playback. During your use of the Service as a Host or Audience Member, VREAL may create photographs and recordings depicting your use of the Service (“Recordings”) and make them available on the Service and on Third Party Services (as defined in “Third Party Services and Linked Websites”).
Eligibility. You must be at least 13 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 13 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
Minors. If you are at least 13 but are under the age of 18, you may only use the Service with your parent’s or guardian’s consent and your parent or guardian must provide consent after having read these Terms. In such a case you represent, warrant, and covenant that both you and your parent or guardian have read and consent to these Terms (including all the conditions, limitations, disclaimers, and waivers provided herein). You further acknowledge and agree that by using the Service you are accepting a benefit that you cannot return or disgorge and that VREAL is relying on your representations regarding your ability to accept and perform these Terms, and you therefore waive any right you may have under applicable law to void, rescind, or otherwise avoid these Terms.
Parent or Guardian. If you are a parent or guardian consenting to these terms on behalf of a child between the ages of 13 and 18, you additionally agree to guarantee and be fully responsible for that person’s performance hereunder, including all financial obligations or liability he or she may incur, and all disclaimers and waivers of applicable legal protections provided herein, and you agree to take all actions (including executing such additional documents or agreements) necessary to effect and perfect the foregoing.
Otherwise. In all other cases, you represent that you are 18 years or older and fully competent to enter into these Terms, and you hereby agree and acknowledge that you have read, understood, and agree to be bound by these Terms without modification.
Accounts and Registration. While you may use the Service without registering for an account, to access all the features of the Service, including to create a Stream, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your preferred username, email address, or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at firstname.lastname@example.org.
Messages. You may be able to send messages, including text, voice, and audiovisual messages, to other users through the Service. You represent and warrant that you will not send or attempt to send messages through the Service to users who have blocked you or asked you not to send such messages, and you will indemnify and hold VREAL harmless from any and all claims arising out of your sending any messages to any users. You are responsible for all fees and charges associated with such messages.
Playing Safely. BY USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU RUN THE RISK OF CAUSING DAMAGE TO YOUR DEVICE, THE APPROVED HARDWARE, YOURSELF, OR OTHERS IF YOU DO NOT PLAY CAREFULLY, INCLUDING THROUGH CONTACT WITH A SURFACE, THROUGH LOSS OF CONTROL OF THE DEVICE, OR THROUGH PLAYING FOR A PROLONGED PERIOD. PLEASE ONLY ACCESS THE SERVICE IN A SPACE WHERE YOU CAN SAFELY MOVE WITHOUT RUNNING INTO ANY SHARP EDGES OR OTHER HAZARDOUS CONDITIONS. PAY ATTENTION TO YOUR SURROUNDINGS AT ALL TIMES WHEN USING THE SERVICE. YOU ACKNOWLEDGE AND AGREE THAT WE WILL NOT HAVE ANY RESPONSIBILITY FOR ANY DAMAGE THAT OCCURS TO YOU, ANY THIRD PERSON, ANY APPROVED HARDWARE, OR TO ANY DEVICE ON OR THROUGH WHICH YOU USE THE SERVICE, AND YOU ACCEPT THE RISKS OF ANY SUCH DAMAGE BY USING THE SERVICE.
Automatic Software Updates. We may need to automatically update some of the software you obtain through the Service or provide you with new software to keep the Service functioning properly, which could include bug fixes, patches, enhanced features, missing plug-ins, and new versions. By using the Service, you agree to such automatic updating.
Digital Goods. The Service may also permit you to purchase access to a variety of virtual products provided by VREAL or third party developers, such as avatars, avatar customization items, emotes, collectibles and digital currencies (collectively, “Digital Goods”). Digital Goods have no monetary value and may only be used by you for personal, non-commercial entertainment purposes and subject to these Terms. You may not sell, transfer, or attempt to gamble or bargain with another user or third party using any Digital Goods available to you through the Service. Digital Goods will not be restored, refunded, or repaired if lost, stolen, or otherwise altered or destroyed, except in VREAL’s sole discretion on a case-by-case basis. VREAL does not guarantee that any particular Digital Goods will be available for purchase via the Service, and may modify, delete, or create any Digital Goods on the Service in its sole discretion.
General Payment Terms. Certain features of the Service may require you to pay fees, including in connection with the purchase of Digital Goods. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged.
Price. VREAL reserves the right to determine pricing for the Service. VREAL will make reasonable efforts to keep pricing information published on the website up to date. We encourage you to check the Service periodically for current pricing information. VREAL may change the fees for any feature of the Service, including additional fees or charges, provided that VREAL will use reasonable efforts to give you advance notice of material changes before they apply. VREAL, at its sole discretion, may make promotional offers with different features and different pricing to any of VREAL’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
Authorization. You authorize VREAL’s third party payment processors to charge all sums for the orders that you make as described in these Terms or published by VREAL, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, VREAL may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
Delinquent Accounts. VREAL may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees.
Limited License. Subject to your complete and ongoing compliance with these Terms, VREAL grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any application associated with the Service obtained from a legitimate marketplace (whether installed by you or pre-installed on your device by the device manufacturer) on a device that you own or control; and (b) access and use the Service and the Materials as set forth herein.
License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Service (except as otherwise authorized by VREAL); (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant VREAL an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
Ownership; Proprietary Rights. The Service is owned and operated by VREAL. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), Digital Goods, products, software, services, and all other elements of the Service (“Materials”) provided by VREAL are protected by intellectual property (including patent) and other laws. All Materials included in the Service are the property of VREAL or its third party licensors. Except as expressly authorized by VREAL, you may not make use of the Materials. VREAL reserves all rights to the Materials not granted expressly in these Terms.
Third Party Terms
Third Party Services and Linked Websites. VREAL may provide tools through the Service that enable you to export information, including User Content, to third party services, including through features that allow you to link your account on VREAL with an account on the third party service, such as Steam, Oculus, YouTube, Twitch, or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that VREAL may transfer that information to the applicable third party service. Third party services are not under VREAL’s control, and, to the fullest extent permitted by law, VREAL is not responsible for any third party service’s use of your exported information. The Service may also contain links to third party websites. Linked websites are not under VREAL’s control, and VREAL is not responsible for their content.
Third Party Software. The Service may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third party licenses or to limit your use of Third Party Components under those third party licenses.
Contest Terms. Other users and third parties may offer contests or promotions (“Contests”) on the Service. Such Contests are subject to Additional Terms (defined in “Additional Terms”). If you offer any Contests to users on the Service, you must provide clear and conspicuous Contest terms and conditions to each user prior to such user’s entry into the Contest. To the fullest extent permitted by law, VREAL disclaims any and all liability for Contests offered by parties other than VREAL.
Endorsements. If you offer any endorsement or testimonial (as defined in 16 C.F.R. Part 255) for a product or service through your use of the Service, you agree that you will comply with all applicable laws relating to endorsements and testimonials, including, but not limited to, 15 U.S.C. § 4 and the regulations of the Federal Trade Commission set forth at 16 C.F.R. Part 255. You can find the FTC’s compliance resources here.
User Content Generally. Certain features of the Service may permit users to upload content to the Service, including Streams, messages, reviews, photos, video, audio, images, folders, data, text, and other types of works (“User Content”) and to publish User Content on the Service. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Service.
License to Likeness; Waiver. As an Audience Member or a Host, you hereby grant VREAL a royalty-free license to use your username, voice, image, and likeness (collectively, your “Likeness”) to identify you as the source of any of your User Content or as the subject of any Recordings and to use such Likeness as it appears in your User Content and in Recordings. You hereby waive any right of inspection or approval of your Likeness, any Recording, or the uses to which the Recordings may be put. You hereby waive any rights to privacy or publicity, whether granted by statute or common law, that you may have in connection with your Likeness and any Recording as they appear on the Service. You acknowledge that VREAL will rely on this permission, potentially at substantial cost to VREAL, and hereby agree not to assert any claim of any nature whatsoever against anyone relating to the exercise of the permissions granted hereunder.
Limited License Grant to VREAL. By providing User Content to or via the Service, you grant VREAL a worldwide, non-exclusive, perpetual, irrevocable (except as set forth in the last sentence hereof) royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed. Users may upload User Content to the copy of the Service stored on a local device, which content may be deleted only if it has not yet been published to the VREAL servers.
Limited License Grant to Other Users. By providing User Content to or via the Service to other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
User Content Representations and Warranties. VREAL disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant that:
- you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize VREAL and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by VREAL, the Service, and these Terms;
- your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; (iii) cause VREAL to violate any law or regulation; or (iv) include any pre-release or non-public beta software or game content, or any confidential information of VREAL or any third party; and
- your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, invasive of privacy or publicity rights, or otherwise inappropriate.
User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. VREAL may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or otherwise objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against VREAL with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, VREAL does not permit copyright-infringing activities on the Service.
Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
- use the Service for any illegal purpose or in violation of any local, state, national, or international law;
- harass, threaten, demean, embarrass, or otherwise harm any other user of the Service;
- violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
- interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
- interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service, or spamming the Service or other users with repetitive comments or messages; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
- perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age;
- use any data mining, robots, or similar data gathering or extraction methods;
- sell or otherwise transfer the access granted under these Terms or any Materials (as defined in “Ownership; Proprietary Rights”) or any right or ability to view, access, or use any Materials; or
- attempt to do any of the acts described in this Section or assist or permit any person in engaging in any of the acts described in this Section.
Digital Millennium Copyright Act
DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
1215 4th Ave
Seattle, WA 98161
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights (“Notification of Claimed Infringement”) must include the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of the material that you claim is infringing and where it is located on the Service;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
- a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Repeat Infringers. VREAL’s intellectual property policy is to (i) remove or disable access to material that VREAL believes in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available through the Service; (ii) remove any User Content posted to the Service by “repeat infringers”; and (iii) promptly terminate the accounts of users who are determined to be “repeat infringers.” VREAL currently considers a “repeat infringer” to be any user that has posted User Content or Feedback on or to the Service and for whom VREAL has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content or Feedback. VREAL has discretion, however, to terminate the account of any user after receipt of a single Notification of Claimed Infringement (as defined above) or upon VREAL’s own determination.
Modification of these Terms. We reserve the right to change these Terms on a going-forward basis at any time upon 7 days’ notice. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
Term, Termination and Modification of the Service
Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described below.
Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, VREAL may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by contacting customer service at email@example.com.
Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay VREAL any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and the following Sections will survive: “Feedback,” “Ownership; Proprietary Rights,” “User Content,” “Indemnity,” “Disclaimers; No Warranties,” “Limitation of Liability,” “Dispute Resolution and Arbitration,” and “Miscellaneous.”
Modification of the Service. VREAL reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. VREAL will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify VREAL and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “VREAL Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. VREAL DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. VREAL DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND VREAL DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR VREAL ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE VREAL ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. VREAL does not disclaim any warranty or other right that VREAL is prohibited from disclaiming under applicable law.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE VREAL ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY VREAL ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN “NOTICE OF ARBITRATION; PROCESS,” AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE VREAL ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO VREAL FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Dispute Resolution and Arbitration
Generally. In the interest of resolving disputes between you and VREAL in the most expedient and cost effective manner, and except as described in “Exceptions,” below, you and VREAL agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND VREAL ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Exceptions. Despite the provisions of “General,” above, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
Arbitrator. Any arbitration between you and VREAL will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting VREAL. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). VREAL’s address for notice is: VREAL Inc., 1215 4th Ave, #1710 Seattle, WA 98161. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or VREAL may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or VREAL must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by VREAL in settlement of the dispute prior to the award, VREAL will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
Fees. If you commence arbitration in accordance with these Terms, VREAL will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in King County, Washington, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse VREAL for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
No Class Actions. YOU AND VREAL AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and VREAL agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Modifications to this Arbitration Provision. If VREAL makes any future change to this arbitration provision, other than a change to VREAL’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to VREAL’s address for Notice of Arbitration, in which case your account with VREAL will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
Enforceability. If “No Class Actions” is found to be unenforceable or if the entirety of this “Dispute Resolution and Arbitration” Section is found to be unenforceable, then the entirety of this “Dispute Resolution and Arbitration” Section will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in “Governing Law” will govern any action arising out of or related to these Terms.
Governing Law. These Terms are governed by the laws of the State of Washington without regard to conflict of law principles. You and VREAL submit to the personal and exclusive jurisdiction of the state courts and federal courts located within King County, Washington for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in Washington, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
Open Source Software. Parts of the Service contain certain open source software. Each item of open source software is subject to its own applicable license terms, which can be found at http://vreal.net/opensource
Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
Contact Information. The Service is offered by VREAL Inc., located at 1215 4th Ave, #1710 Seattle, WA 98161. You may contact us by sending correspondence to that address or by emailing us at firstname.lastname@example.org. You can access a copy of these Terms at http://vreal.net/terms.
Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.