WEBSITE AND MEMBERSHIP TERMS AND CONDITIONS
Last Updated: May 21, 2018
Virtual Reality Bangers, LLC, a California limited liability company (the “Company”), welcomes you to www.vrbangers.com (the “Website”). It is important to the Company that you and other visitors have the best possible experience while using the Website, and that, when you use the Website, you understand your legal rights and obligations. Please read this terms-of-service agreement, which is a legal agreement between you and the Company that governs your access to and use of the Website, including any content, functionality, and services offered on or through the Website. Your access to the Website is on the condition that you agree to this agreement. Please pay special attention to the following: (1) disclaimer of warranties (section 15); (2) limit on liability and exclusion of damages (sections 16 and 17); (3) place for resolving disputes (section 20.2); (4) mandatory mediation and arbitration (sections 21.3 and 21.4); (5) class action waiver (section 21.8); and (6) limitation on time to file disputes (section 21.9).
Section 230(d) Notice: In accordance with 47 U.S.C. § 230(d), you are notified that parental control protections (including computer hardware, software, or filtering services) are commercially available that may help in limiting access to material that is harmful to minors. You may find information about providers of these protections on the Internet by searching “parental control protection” or similar terms.
Age Restriction: Only adults (1) who are at least 18-years old and (2) who have reached the age of majority where they live may access the Website. The Company forbids all persons who do not meet these age requirements from accessing the Website. If minors have access to your computer, please restrain their access to sexually explicit material by using any of the following products, which the Company provides for informational purposes only and does not endorse: CYBERsitter™ | Net Nanny® | CyberPatrol | ASACP.
Notice of Explicit Content: The Website may contain content that you may find offensive, indecent, or objectionable, including heterosexual, bisexual, homosexual, and transsexual situations of a sexual nature. This content may or may not be identified as having attributes that you may find offensive. You acknowledge that you use the Website at your own risk, and the Company has no liability to you for any content you view.
Child Pornography Prohibited: The Company prohibits pornographic content involving minors. The Company only allows visual media of consenting adults for consenting adults on the Website. If you see any visual media, real or simulated, depicting minors engaged in sexual activity within the Website, please report this to the Company promptly at [email protected]. Please include with your report all appropriate evidence, including the date and time of identification. The Company will promptly investigate all reports and take appropriate action. The Company fully cooperates with any law-enforcement agency investigating child pornography.
1. Introduction
1.1 The Website allows you to purchase access to virtual reality content, including videos for streaming and download. In certain circumstances, some videos may be available for streaming only or for downloading only. To view the videos, you will need a VR headset, personal computer, tablet, phone, or other device that meets the Website’s system and compatibility requirements, and access to the Internet. When streaming, the resolution and quality of the video you receive will depend on a number of factors, including your Internet bandwidth, which may fluctuate while a video is being streamed.
Unless otherwise stated, memberships automatically renew under this agreement unless you cancel before the end of your term. To cancel your membership, contact the payment processor you signed up through. Your payment method will automatically be charged at the rate in effect at the time you originally signed up.
1.2 This agreement applies to all users of the Website, whether you are a “visitor” or a “registered user.” By clicking on the “I Agree” button on the warning page, checking the appropriate box during signup, purchasing a membership, or accessing any part of the Website, you agree to this agreement. If you do not want to agree to this agreement, you must leave the Website. If you breach any part of this agreement, the Company may revoke your license to access the Website, block your access, and cancel your account.
1.3 The Company may change this agreement on one or more occasions by updating this page. The top of this page will tell you when the Company last updated this agreement. Changes will take effect on the “last updated” date stated on the top of this page. Changes will not operate retroactively. The Company will try to notify you when it changes this agreement if it can do so in a reasonable manner. But you should frequently check this page to make sure that you are operating under the most current version of this agreement. The Company will consider your continued use of the Website after it posts the changes as your acceptance of the changes even if you do not read them. If you do not agree to the changes, your sole remedy is to stop accessing the Website.
1.4 If you have any questions about this agreement or any questions or comments about the Website, please contact the Company.
2. Adult-Oriented Content and Affirmative Representations. The Website contains uncensored sexually explicit material unsuitable for minors. Only adults (1) who are at least 18-years old and (2) who have reached the age of majority where they live may access the Website. If you do not meet these age requirements, you must not access the Website and must leave now. By accessing the Website, you state that the following facts are accurate:
2.1 You (1) are at least 18-years old, (2) have reached the age of majority where you live, and (3) have the legal capacity to enter into this agreement;
2.2 All information you provided to the Company is accurate, and you will promptly update this information when necessary to make sure that it remains accurate;
2.3 You own (or have permission to use) the credit card you pay with and authorize the Company (or its authorized payment processing agent) to charge the credit card according to the membership you choose;
2.4 You are aware of the adult nature of the content available on the Website, and you are not offended by visual images, verbal descriptions, and audio sounds of a sexually oriented nature, which may include graphic visual depictions and descriptions of nudity and sexual activity;
2.5 You are familiar with your community’s laws affecting your right to access adult-oriented materials, including sexually explicit material depicting bondage, S/M, and other fetish activities;
2.6 You have the legal right to access adult-oriented materials, including sexually explicit material depicting bondage, S/M, and other fetish activities, and the Company has legal right to transmit them to you;
2.7 You are voluntarily requesting adult-oriented materials for your own private enjoyment;
2.8 You are not accessing the Website from a place, country, or location in which doing so would, or could be considered a violation of any law;
2.9 You will not share these materials with a minor or otherwise make them available to a minor; and
2.10 By accessing the Website, you will have released and discharged the providers, owners, and creators of the Website from all liability that might arise.
3. VR Content Warning. The Website offers virtual reality motion pictures (“VR”). You must read and abide by the following warnings before using any VR content. Please also review and adhere to the instructions and any warnings for the device that you use to view VR content.
3.1 Due to the nature of VR content, the Company recommends that certain individuals consult a physician before viewing VR content, including individuals that are elderly, pregnant, or suffer from a heart condition, vision abnormalities, psychiatric disorders, or other serious medical conditions.
3.2 It is safest view VR content while seated. Please take notice of your surroundings before viewing VR content, as elements of your surroundings can be dangerous. You should avoid the following when viewing or shortly after viewing VR content: roads, stairs, balconies, windows, furniture, people, animals, electronics, objects, or other items which you could bump into, fall over, fall through, or cut yourself on. Do not view VR content while engaging in other activities such as walking, biking, dancing, driving, or handling dangerous items.
3.3 Do not view VR content if you are tired; dizzy; suffer from a headache, flu, cold, migraine, earache, hungover or are otherwise sick or not feeling well; or are under the influence of drugs or alcohol. Do not view VR content if you are in a moving vehicle, as it could increase the likelihood that you experience one or more of the foregoing symptoms or other adverse symptoms.
3.4 Prolonged viewing of VR content should be avoided as it may have negative impacts on hand-eye coordination, balance, and certain other abilities. Always stop viewing VR content and remove your headset before doing anything that requires attention or coordination.
3.5 You should immediately stop viewing VR content if you lose awareness of your surrounding or begin to experience seizures, eye twitches, blurred or abnormal vision, impaired balance, hand-eye coordination or nausea, increased sweating, motion sickness, pain, fatigue, dizziness, disorientation, or drowsiness. You should consult a physician before you resume viewing any VR content.
3.6 Do not view VR content for longer than 30-minute intervals without taking a break of at least 10 to 15 minutes. If you feel discomfort, you should take a longer break.
3.7 If you elect to view VR content in connection with any other external device, please do so with caution. Please consult the instructions and heed any warnings regarding those devices. If use of those devices causes any adverse symptoms, please stop using that device immediately.
3.8 Consult a physician if you have serious or persistent symptoms.
4. Limited License
4.1 License Grant. The Company hereby grants you a nonexclusive, non sub licensable, nontransferable license to access the Website and its content for your personal and noncommercial use in accordance with this agreement.
4.2 License Restrictions. The license granted in section 4.1 does not include any of the following:
(a) resale or commercial use of the Website;
(b) distribution, public performance, or public display of the Website or the content;
(c) changing or otherwise making any derivative uses of the Website and the content, or any part of the Website or the content, unless the Company specifically authorizes change or derivative use in a separate written agreement with you;
(d) use of any data mining, robots, or similar gathering or extraction methods;
(e) downloading (other than webpage caching) any part of the Website or the content except as permitted on the Website; or
(f) any other use of the Website or the content other than for its intended purpose.
Your license to access the Website does not transfer ownership of or title to a copy of any content that you view or download, and the Company only authorizes you to use your copy in accordance with this agreement. If you download or print a copy of the content for your personal use, you must retain all copyright and other proprietary notices embedded in the content. Any use of the Website or the content except as authorized by this agreement will terminate the license granted here. Unauthorized use of the Website or the content also may violate intellectual-property laws or other laws. Unless stated here, nothing in this agreement should be construed as conferring any license to intellectual-property rights, whether by estoppel, implication, or otherwise. The Company may revoke this license at any time.
5. Intellectual-Property Rights
5.1 Ownership of Website. The Website and its entire contents, features, and functionality (including all information, software, text, displays, images, video, audio, and audiovisual combinations and the design, selection, and arrangement of it) are owned by the Company, its licensors, or other providers of the material and are protected by copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
5.2 Trademarks. The Company’s name and logo and the Website’s name, logo, and domain name are the Company’s trademarks, and must not be copied, imitated, or used, in whole or in part, without the Company’s written permission. In addition, all page headers, custom graphics, button icons, and scripts are the Company’s service marks, trademarks, and trade dress, and must not be copied, imitated, or use, in whole or in part, without the Company’s advance written permission. Other names of actual companies, products, or services mentioned on the Website may be the trademarks of their respective owners and reference to them does not suggest sponsorship, endorsement, or association by or with the Company, or that those owners endorse or have any affiliation with the Website. Nothing contained on the Website should be construed as granting, by implication or otherwise, any license or right to use any marks displayed on the Website, meta tags, or any other “hidden text” using marks that belong to the Company and its licensors, without advanced written permission from the Company or the third party who may own the mark.
6. Your Account
6.1 Account Creation. You must complete the registration process by providing the Company with accurate information as prompted by the registration form. You must also choose a password and a username.
6.2 Responsibility for Account. You are responsible for maintaining the confidentiality of your password and account. Further, you are responsible for all activities that occur under your account. You will promptly notify the Company of any unauthorized use of your account or any other breach of security.
6.3 Liability for Account Misuse. The Company will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. You could be held liable for losses incurred by the Company or another party due to someone else using your account or password.
6.4 Use of Other Accounts. You must not use anyone else’s account at any time.
6.5 Account Security. The Company cares about the integrity and security of your personal information. But the Company cannot guarantee that unauthorized third parties will never be able to defeat the Website’s security measures or use any personal information you provide to the Company for improper purposes. You acknowledge that you provide your personal information at your own risk.
6.6 Communication Preferences. By registering for an account, you consent to receiving electronic communications from the Company relating to your account. These communications may involve sending emails to your email address provided during registration or posting communications on the Website and will include notices about your account (e.g., payment authorizations, change in password or payment method, confirmation emails, and other transactional information) and are part of your relationship with the Company. You acknowledge that any notices, agreements, disclosures, or other communications that the Company sends to you electronically will satisfy any legal communication requirements, including that these communications be in writing. The Company recommends that you keep copies of electronic communications by printing a paper copy or saving an electronic copy. You also consent to receiving certain other communications from the Company, including newsletters about new features and content, special offers, promotional announcements, and customer surveys via email or other methods. You acknowledge that communications you receive from the Company may contain sexually-explicit material unsuitable for minors. If you no longer want to receive certain non-transaction communications, please review the Privacy Policy regarding opting out of marketing communications.
7. Paid Services
7.1 Membership
(a) Ongoing Membership. Your membership, which may start with a trial membership, will continue month-to-month (or any longer term selected) and automatically renew unless you cancel your membership, or the Company terminates it. You must have Internet access and provide the Company with a current, valid, accepted method of payment. The Company will bill the membership fee to your chosen payment method. You must cancel your membership before it renews each term to avoid billing of the next term’s membership fees to your chosen payment method.
(b) Differing Memberships. The Company may offer several membership plans, including special promotional plans or memberships with differing conditions and limitations. Any material different terms from those described in this agreement will be disclosed at your signup or in other communications made available to you.
7.2 Trial Memberships. Your membership may start with a trial. The trial period of your membership lasts for the period specified during signup. The Company will begin billing your payment method for monthly membership fees at the end of the trial period of your membership and your membership will automatically renew monthly unless you cancel before the end of the trial period. The Company may authorize your payment method through various methods, including authorizing it up to approximately one month of service as soon as you register. In some cases, your available balance or credit limit may be reduced to reflect the authorization during your trial period. The Company will continue to bill your payment method monthly for your membership fee until you cancel.
7.3 Billing
(a) Recurring Billing. By starting your premium membership and providing or designating a payment method, you authorize the Company or its payment processor to charge you a membership fee at the rate in effect when you originally signed up, and any other charges you may incur in connection with your use of the Website, such as taxes or possible transaction fees. Your membership will continue for the length of the initial term you select, and, at the end of your prepaid initial term, it will automatically renew for additional prepaid periods of the same length. You must cancel your membership before it renews to avoid billing of the next term’s membership fees to your payment method. Your account will automatically be charged at the rates in effect at the time you originally signed up.
(b) Price Changes. The Company may adjust pricing for its service or any components of it in any way and at any time as it may determine in its sole discretion. Any price changes will not affect your current membership (including any renewals) unless the Company gives you 30-days advance email notice to you.
(c) Billing Cycle. The membership fee will be billed at the beginning of the paying part of your membership and each month afterwards until you cancel your membership. Membership fees are fully earned on payment.
(d) Billing Disputes. If you believe that the Company has charged you in error, you must notify the Company in writing no later than 30 days after you receive the billing statement in which the error first appeared. If you fail to notify the Company in writing of a dispute within this 30-day deadline, you waive any disputed charges. You must submit any billing disputes in writing to [email protected] and include a detailed statement describing the nature and amount of the disputed charges. The Company will correct any mistakes in a bill and add or credit them against your future payments.
(e) Refunds. Payments are nonrefundable and there are no refunds or credits for partially used periods, except that the Company may approve a refund in the form of a credit on request if exceptional circumstances exist. If you believe exceptional circumstances exist, please contact the Company and explain the exceptional circumstances that you believe merits a refund. The Company is not making any promise that it will give you a refund. If the Company gives you a refund, the Company will issue the refund in the form of free services or a credit to the payment method you used for your purchase; the Company will not make refunds in the form of cash or check. The provision of a refund in one instance does not entitle you to a refund in the future for similar instances; nor does it obligate the Company to provide refunds in the future, under any circumstance.
(f) Cancellation. You may cancel your membership at any time, and you will continue to have access to the Website through the end of your billing period. To cancel your premium membership, please contact the payment processor that you signed up through or contact the Company for help.
8. User Conduct. You must not engage in any of the following prohibited activities:
8.1 copying, distributing, or disclosing any part of the Website in any medium, including by any automated or non-automated “scraping;”
8.2 using any automated system, including “robots,” “spiders,” “offline readers,” etc., to access the Website;
8.3 transmitting spam, chain letters, or other unsolicited commercial email;
8.4 attempting to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Website;
8.5 taking any action that imposes, or may impose at the Company’s sole discretion an unreasonable or disproportionately large load on the Website infrastructure;
8.6 uploading invalid data, viruses, worms, or other software agents through the Website;
8.7 collecting or harvesting any personally identifiable information, including account names, from the Website;
8.8 using the Website for any commercial solicitation purposes;
8.9 impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, or hiding or attempting to hide your identity;
8.10 interfering with the proper working of the Website;
8.11 accessing any content on the Website through any technology or means other than those provided or authorized by the Website;
8.12 bypassing the security measures that the Company may use to prevent or restrict access to the Website, including features that prevent or restrict use or copying of any content or enforce limitations on use of the Website or the content located on it; or
8.13 using the Website for any unlawful purpose or in any other way that is prohibited by this agreement, applicable law, or that exposes the Company to civil or criminal liability.
9. Third-Party Content. Through the Website, you may have the ability to access or use content provided by third parties. The Company cannot guarantee that third-party content will be free of material you may find objectionable or otherwise. The Company will not be liable to you for your access or use of any third-party content.
10. Links. The Website may contain links to third-party websites or resources. You acknowledge that the Company is not responsible or liable for (1) the availability or accuracy of those websites or resources; or (2) the content, products, or services on or available from those websites or resources. Links to third-party websites or resources do not imply any endorsement by the Company of those websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any third-party websites or resources.
11. Privacy. For information about how the Company collects, uses, and shares your information, please review the Privacy Policy. You acknowledge that by using the Website, you consent to the collection, use, and sharing (as stated in the Privacy Policy) of that information (including the transfer of this information to the United States or other countries for the Company’s storage, processing, and use.
12. Changes to the Website; Availability
12.1 Although the Company may update the content on the Website on one or more occasions, the content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and the Company is not required to update that material.
12.2 While the Company will try to make sure that the Website is always available, it does not guarantee continuous, uninterrupted, or secure access to the Website. Many factors or circumstances outside of the Company’s control may interfere with or adversely affect its operation of the Website.
13. Termination
13.1 Termination on Notice. Either party may terminate this agreement at any time by notifying the other party.
13.2 Termination by the Company. The Company may suspend, disable, or cancel your access to the Website (or any part of it) if it determines that you have breached this agreement or that your conduct would tend to damage the Company’s reputation and goodwill. If the Company terminates your access for any of these reasons, you must not access the Website. The Company may block your email address and IP address to prevent further access.
13.3 Effect of Termination. On termination, your right to access the Website and all licenses granted by the Company terminates. Termination of your access to the Website will not relieve you of any obligations arising or accruing before termination or limit any liability that you otherwise may have to the Company or any third party. You are solely responsible for making sure that any recurring billing is cancelled. To cancel recurring billing, please contact the payment processor you signed up through.
13.4 Survival. This agreement’s provisions that by their nature should survive termination will survive termination, including ownership provisions, warranty disclaimers, and limitations of liability.
14. Compliance with Law. The Website is hosted in the United States. The Company is not making any statement that the Website or any of its content is accessible or appropriate outside of the United States. Access to the Website might not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so on your own initiative and are responsible for complying with all local laws. If you access the Website in a jurisdiction that prohibits or restricts its use, the Company will not have any liability to you for your use.
15. Acknowledgments and Warranty Disclaimers
15.1 You acknowledge that the Company cannot and does not state that files available for downloading from the Internet or the Website will be free from loss, corruption, attack, viruses or other destructive code, interference, hacking, or other security intrusions. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for antivirus protection and accuracy of data input and output, and for keeping a means external to the Website for any reconstruction of any lost data. The Company will not be liable for any loss or damage caused by a distributed denial-of-service (DDoS) attack, viruses, or other technologically harmful material that might infect your computer equipment, computer programs, data, or other proprietary material due to your use of the Website or any services or items obtained through the Website or to your downloading of any material posted on the Website, or on any website linked to the Website.
15.2 You acknowledge that you may be exposed to content that is inaccurate, offensive, indecent, or objectionable, and you hereby waive any legal or equitable rights or remedies you have or may have against the Company with respect to this content.
15.3 Your use of the Website, its content, and any services or items obtained through the Website is at your own risk. The Company provides the Website, its content, and any services or items obtained through the Website “as is,” “with all faults,” and “as available,” without making any warranty, either express or implied. The Company is not making any warranty (1) that the Website, its content, or any services or items obtained through the Website will be accurate, reliable, error-free, or uninterrupted; (2) that defects will be corrected; (3) that the Website or the server that makes it available are free of viruses or other harmful components; or (4) that the Website or any services or items obtained through the Website will otherwise meet your needs or expectations.
15.4 The Company is not making any warranty, whether express, implied, statutory, or otherwise, including warranty of merchantability, non-infringement, and fitness for a particular purpose. No advice or information, whether oral or written, obtained from the Company, the Website, or elsewhere will create any warranty not expressly stated in this agreement.
16. Limit on Liability; Release
16.1 The Company, its directors, officers, employees, agents, subsidiaries, affiliates, licensors, content providers, and service providers will not be liable to you for any of the following:
(a) Errors, mistakes, or inaccuracies of content;
(b) Personal injury or property damage resulting from your access to and use of the Website or its content;
(c) Content or conduct that is infringing, inaccurate, obscene, indecent, offensive, threatening, harassing, defamatory, libelous, abusive, invasive of privacy, or illegal;
(d) Unauthorized access to or use of the Company’s servers and any personal or financial information stored in them, including unauthorized access or changes to your account, transmissions, or data;
(e) Interruption or cessation of transmission to or from the Website;
(f) Bugs, viruses, Trojan horses, malware, ransomware, or other disabling code that may be transmitted to or through the Website by any person or that might infect your computer or affect your access to or use of the Website, your other services, hardware, or software;
(g) Incompatibility between the Website and your other services, hardware, or software;
(h) Delays or failures you might experience in starting, conducting, or completing any transmissions to or transactions with the Website; or
(i) Loss or damage incurred because of the use of any content posted, emailed, sent, or otherwise made available through the Website.
16.2 You hereby release the Company, its directors, officers, employees, agents, subsidiaries, affiliates, licensors, content providers, and service providers from all liability arising out of the conduct of other users or third parties, including disputes between you and one or more other users or third parties.
17. Exclusion of Damages; Exclusive Remedy
17.1 Unless caused by gross negligence or intentional misconduct, the Company, its directors, officers, employees, agents, subsidiaries, affiliates, licensors, content providers, and service providers will not be liable to you for any direct, indirect, special (including so-called consequential damages), statutory, punitive, or exemplary damages arising out of or relating to your access or your inability to access the Website or the content. This exclusion applies regardless of theory of liability and even if you told the Company about the possibility of these damages or the Company knew or should have known about the possibility of these damages.
17.2 The Company, its directors, officers, employees, agents, subsidiaries, affiliates, licensors, content providers, and service providers will not be liable to you for any damages for (1) personal injury, (2) pain and suffering, (3) emotional distress, (4) loss of revenue, (5) loss of profits, (6) loss of business or anticipated savings, (7) loss of use, (8) loss of goodwill, (9) loss of data, (10) loss of privacy, or (11) computer failure related to your access of or your inability to access the Website or the content. This exclusion applies regardless of theory of liability and even if you told the Company about the possibility of these damages or the Company knew or should have known about the possibility of these damages.
17.3 If you are dissatisfied with the Website or have any other complaint, your exclusive remedy is to stop using the Website. The maximum liability of the Company and its directors, officers, employees, agents, subsidiaries, affiliates, licensors, content providers, and service providers to you for any claim will not exceed the greater of $250 and the amount you have paid to the Company for the applicable purchase out of which liability arose even if the remedy fails of its essential purpose.
18. Scope of Disclaimers, Exclusions, and Limits. The disclaimers, exclusions, and limits stated in sections 15, 16, and 17 apply to the greatest extent allowed by law, but no more. The Company does not intend to deprive you of any mandatory protections provided to you by law. Because some jurisdictions may prohibit the disclaimer of some warranties, the exclusion of some damages, or other matters, one or more of the disclaimers, exclusions, or limits will not apply to you.
19. Indemnification
19.1 In General. You will pay the Company, its directors, officers, employees, agents, contractors, subsidiaries, affiliates, partners, licensors, content providers, and service providers (collectively, the “Indemnified Parties”) for any loss of an Indemnified Party that is caused by any of the following (whether actual or alleged): (a) your use of the Website; (b) your breach of this agreement; (c) your violation of applicable law; or (d) your violation of a third party’s rights. But you are not required to pay if the loss was caused by the Indemnified Party’s actual intentional misconduct.
19.2 Definitions
(a) “Loss” means an amount that the Indemnified Party is legally responsible for or pays in any form. Amounts include, for example, a judgment, a settlement, a fine, damages, injunctive relief, staff compensation, a decrease in property value, and expenses for defending against a claim for a loss (including fees for legal counsel, expert witnesses, and other advisers). A loss can be tangible or intangible; can arise from bodily injury, property damage, or other causes; can be based on tort, breach of contract, or any other theory of recovery; and includes incidental, direct, and consequential damages.
(b) A loss is “caused by” an event if the loss would not have happened without the event, even if the event is not a proximate cause of the loss.
19.3 Indemnified Party’s Duty to Notify. If the Indemnified Party has your contact information, the Indemnified Party will notify you before the 30th day after the Indemnified Party knows or should reasonably have known of a claim for a loss that you might be compelled to pay. But the Indemnified Party’s failure to give you timely notice does not end your obligation, except if that failure prejudices your ability to defend or mitigate losses.
19.4 Legal Defense of a Claim. The Indemnified Party has control over defending a claim for a loss (including settling it), unless the Indemnified Party directs you to control the defense. If the Indemnified Party directs you to control the defense, you will not settle any litigation without the Indemnified Party’s written consent if the settlement (1) imposes a penalty or limitation on the Indemnified Party, (2) admits the Indemnified Party’s fault, or (3) does not fully release the Indemnified Party from liability. You and the Indemnified Party will cooperate with each other in good faith on a claim.
19.5 No Exclusivity. The Indemnified Parties’ rights under this section 19 do not affect other rights they might have.
20. Governing Law; Place for Resolving Disputes
20.1 The laws of the state of California, without giving effect to any conflicts of law principles, govern all matters arising out of or relating to the Website or this agreement. The predominant purpose of this agreement is providing services and licensing access to intellectual property and not a “sale of goods.” This agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
20.2 Except for disputes subject to arbitration, all disputes arising out of or relating to the Website or this agreement will be subject to the exclusive jurisdiction and venue of the United States District Court for the Central District of California or any state court of competent jurisdiction located in Los Angeles County, California. Each party hereby submits to the personal jurisdiction of the United States District Court for the Central District of California and the state courts of competent jurisdiction located in Los Angeles County, California to resolve all disputes not subject to arbitration. Each party hereby waives any right to seek another forum or venue because of improper or inconvenient forum.
20.3 For purposes of this section 20, the Website will be deemed solely based in the state of California and will be deemed a passive website that does not give rise to personal jurisdiction over the Company, either specific or general, in any other jurisdiction.
21. Dispute Resolution
21.1 Litigation Election. Either party may elect to litigate the following type of case or controversy: (a) an action seeking injunctive relief, or (b) a suit to compel compliance with this dispute resolution process.
21.2 Negotiation. Each party will allow the other a reasonable opportunity to comply before it claims that the other has not met the duties under this agreement. The parties will first meet and negotiate with each other in good faith to try to resolve all disputes between the parties arising out of or relating to the Website.
21.3 Mediation. If the parties cannot settle a dispute arising out of or relating to the Website through negotiation after 30 days, either party may, by notice to the other party and the International Institute of Conflict Prevention & Resolution (“CPR”), demand mediation under the Mediation Procedure of CPR. Mediation will take place in Los Angeles County, California. Each party will bear its own costs in mediation, and the parties will share equally between them all third-party mediation costs unless the parties agree differently in writing. Each party will participate actively and constructively in mediation proceedings once started and will attend at least one joint meeting between the mediator and the parties. Any party may terminate mediation at any time after an initial meeting between the mediator and the parties.
21.4 Arbitration
(a) Procedure. If the parties cannot settle a dispute through mediation, the parties will settle any unresolved dispute arising out of or relating to the Website by binding arbitration administered by CPR in accordance with its Rules for Administered Arbitration. A single arbitrator will preside over the arbitration. The arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve all disputes arising out of or relating to the interpretation, enforceability, or formation of this agreement, including any claim that all or any part of this agreement is void or voidable.
(b) Location. Unless the parties agree otherwise, the arbitration will take place in Los Angeles County, California.
(c) Fees. Each party will be responsible for paying any filing, administrative, and arbitrator fees associated with the arbitration.
(d) Award. The arbitrator may grant whatever relief that would be available in a court at law or in equity, except that the arbitrator must not award punitive or exemplary damages, or damages otherwise limited or excluded in this agreement. In accordance with section 21.6, the arbitrator’s award will include costs of arbitration, reasonable legal fees, and reasonable costs for expert and other witnesses. The arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
(e) Confidentiality. Unless required by law, neither a party nor an arbitrator will disclose the existence, content, or results of any arbitration under this agreement without the advance written consent of both parties.
21.5 Right to Injunctive Relief. Nothing in this section 21 will prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property, or unauthorized access to the Website.
21.6 Recovery of Expenses. In any proceedings between the parties arising out of this agreement or relating to the subject matter of this agreement, the prevailing party will be entitled to recover from the other party, besides any other relief awarded, all expenses that the prevailing party incurs in those proceedings, including legal fees and expenses. For purposes of this section 21.6, “prevailing party” means, for any proceeding, the party in whose favor an award is rendered, except that if in those proceedings the award finds in favor of one party on one or more claims or counterclaims and in favor of the other party on one or more other claims or counterclaims, neither party will be the prevailing party. If any proceedings are voluntarily dismissed or are dismissed as part of settlement of that dispute, neither party will be the prevailing party in those proceedings.
21.7 Jury Trial Waiver. Both parties hereby waive the right to a trial by jury for any dispute arising out of or relating to the Website. Either party may enforce this waiver up to and including the first day of trial.
21.8 Class Action Waiver. All claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, and, unless the Company agrees otherwise, the arbitrator will not consolidate more than one person’s claims. Both parties acknowledge that each party is waiving the right to participate in a class action.
21.9 Limited Time to Bring Claims. A party will not file a claim arising out of or relating to the Website more than one year after the cause of action arose. Any claim brought after one year is barred.
22. General
22.1 Entire Agreement. This agreement constitutes the entire agreement between you and the Company about your access to the Website. It supersedes all earlier or contemporaneous agreements between you and the Company about access to the Website. A printed version of this agreement will be admissible in any proceedings arising out of (or relating to) this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and kept in printed form. Any additional terms on the Website will govern the items to which they pertain.
22.2 Changes. The Company may change this agreement on one or more occasions. The Company will try to post changes on the Website at least 15 days before they become effective. Changes will become effective on the “last updated” date stated at the top of this page. Changes will not apply to continuing disputes or to disputes arising out of (or relating to) events happening before the posted changes. While the Company will try to notify you when the Company changes this agreement, the Company does not assume an obligation to do so, and it is your responsibility to frequently check this page to review the most current agreement. By continuing to use the Website after the Company posts changes to this agreement, you agree to the revised agreement. If you do not agree to the revised agreement, your exclusive remedy is to stop accessing the Website. If you need more information about the changes or have any other questions or comments about the changes, please contact the Company at [email protected].
22.3 Assignment and Delegation. The Company may assign its rights or delegate any performance under this agreement without your consent. You will not assign your rights or delegate your performance under this agreement without the Company’s advanced written consent. Any attempted assignment of rights or delegation of performance in breach of this section 22.3 is void.
22.4 No Waivers. The parties may waive a provision in this agreement only by a writing signed by the party or parties against whom the waiver is sought to be enforced. No failure or delay in exercising any right or remedy, or in requiring the satisfaction of any condition, under this agreement, and no act, omission, or course of dealing between the parties, operates as a waiver or estoppel of any right, remedy, or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed as a waiver on any future occasion or against any other person.
22.5 Severability. The parties intend as follows:
(a) that if any provision of this agreement is held to be unenforceable, then that provision will be modified to the minimum extent necessary to make it enforceable, unless that modification is not permitted by law, in which case that provision will be disregarded;
(b) that if modifying or disregarding the unenforceable provision would result in failure of an essential purpose of this agreement, the entire agreement will be held unenforceable;
(c) that if an unenforceable provision is modified or disregarded in accordance with this section 22.5, then the rest of the agreement will remain in effect as written; and
(d) that any unenforceable provision will remain as written in any circumstances other than those in which the provision is held to be unenforceable.
22.6 Notices
(a) Sending Notice to the Company. You may send notice to the Company by email at [email protected] unless a specific email address is set out for giving notice. The Company will consider an email notice received by the Company only when its server sends a return message to you acknowledging receipt. The Company may change its contact information on one or more occasions by posting the change on the Website. Please check the Website for the most current information for sending notice to the Company.
(b) Sending Notice to You—Electronic Notice. You consent to receiving any notice from the Company in electronic form either (1) by email to the last known email address the Company has for you or (2) by posting the notice on a place on the Website chosen for this purpose. The Company will consider notices sent to you by email received when its email service shows transmission to your email address. You state that any email address you gave the Company for contacting you is a current and valid email address for receiving notice, and that your computer has hardware and software configured to send and receive email through the Internet and to print any email you receive.
22.7 Force Majeure. The Company is not responsible for any failure to perform if unforeseen circumstances or causes beyond its reasonable control delays or continues to delay its performance, including:
(a) Acts of God, including fire, flood, earthquakes, hurricanes, tropical storms, or other natural disasters;
(b) War, riot, arson, embargoes, acts of civil or military authority, or terrorism;
(c) Fiber cuts;
(d) Strikes, or shortages in transportation, facilities, fuel, energy, labor, or materials;
(e) Failure of the telecommunications or information services infrastructure; and
(f) Hacking, SPAM, or any failure of a computer, server, network, or software.
22.8 No Third-Party Beneficiaries. This agreement does not, and the parties do not intend it to, confer any rights or remedies on any person other than the parties to this agreement.
22.9 Relationship of the Parties. This agreement does not, and the parties do not intend it to, create a partnership, joint venture, agency, franchise, or employment relationship between the parties and the parties expressly disclaim the existence of any of these relationships between them. Neither of the parties is the agent for the other, and neither party has the right to bind the other on any agreement with a third party.
22.10 Successors and Assigns. This agreement inures to the benefit of, and are binding on, the parties and their respective successors and assigns. This section 22.10 does not address, directly or indirectly, whether a party may assign rights or delegate obligations under this agreement. Section 22.3 addresses these matters.
22.11 Electronic Communications Not Private. The Company does not provide facilities for sending or receiving confidential electronic communications. You should consider all messages sent to the Company or from the Company as open communications readily accessible to the public. You should not use the Website to send or receive messages you only intend the sender and named recipients to read. Users or operators of the Website may read all messages you send to the Website regardless of whether they are intended recipients.
22.12 Electronic Signatures. Any affirmation, assent, or agreement you send through the Website will bind you. You acknowledge that when you click on an “I agree,” “I consent,” or other similarly worded “button” or entry field with your finger, mouse, keystroke, or other device, your agreement or consent will be legally binding and enforceable and the legal equivalent of your handwritten signature.
22.13 Consumer Rights Information—California Residents Only. This section 22.13 applies only to California residents. In compliance with section 1789 of the California Civil Code, please note the following:
Virtual Reality Bangers, LLC
5160 Van Nuys Boulevard #267
Sherman Oaks, California 91403
Users who want to gain access to the members-only area of the Website must be a member in good standing. The Company posts the current membership fees for the Website on the registration page. The Company may change the membership fees at any time. Users may contact the Company at [email protected] to resolve any billing disputes or to receive further information about the Website.
22.14 Complaints—California Residents Only. You may contact in writing the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs at 1020 North Street, #501, Sacramento, California 95814, or by telephone at +1 (916) 445-1254.
22.15 Feedback. The Company encourage you to provide feedback about the Website. But the Company will not treat as confidential any suggestion or idea provided by you, and nothing in this agreement will restrict its right to use, profit from, disclose, publish, or otherwise exploit any feedback, without payment to you.
22.16 English Language. The Company drafted this agreement in the English language. No translation into any other language will be used to interpret or construe this agreement. All services, support, notices, designations, specifications, and communications will be provided in English.
22.17 Your Comments and Concerns. You should direct all feedback, comments, requests for technical support, and other communications relating to the Website to [email protected].