Terms of Service
Last Updated: February 20, 2019
SPRINGBOARDVR TERMS OF SERVICE AGREEMENT
Table of Contents
- Introduction and Acceptance
- Eligibility; Compliance
- User Account; User Approval
- Intellectual Property Rights
- User Conduct
- Additional Terms Specific to Content Providers
- Additional Terms Specific to Operators
- Third Party Services and Third Party Materials
- Data and Wireless Access Charges
- Digital Millennium Copyright Act
- Term and Termination
- Disclaimer and Limitations of Liability
- Arbitration Agreement; Jury Trial Waiver and Class Action Waiver; Forum Selection Clause
- Governing Law; Miscellaneous
Please read this SpringboardVR Terms of Service Agreement (this “Agreement”) carefully, as it constitutes a legally binding agreement between You (whether as Content Provider and/or Operator (“You” “Your” or as applicable, Content Provider or Operator (each as defined below)), and Springboard Virtual Reality, Inc. d/b/a SpringboardVR (“Springboard” or “We” or “Us” or “Our”) and applies to Your use of and access to (a) www.springboardvr.com and all corresponding domains, subdomains, web pages and websites associated therewith (the “Sites”); (b) the virtual reality platform and management system (the “Platform”), which includes (i) the cloud-based portal through which Operators may download and otherwise access Provider Content (as defined below and the online tool that Operator Users may use to schedule time at an Operator’s location (the “Scheduler"), and (ii) the Desktop Client software loaded onto each individual game station, including the background service which monitors activity and reports to our web services, provides station state information and enables you to remotely control the station from the station monitor, and the launcher which allows users to browse, find, and start VR titles they want to experience, and which is started automatically whenever VR is available on your station, your user stops playing a title, or when you explicitly start it using the station monitor; (c) all software and/or applications made available by Us from time to time and to which these terms are applied, whether made available on or accessed by the Platform, mobile devices, web interfaces, computers, tablets or otherwise (the “Software”); and (d) any other content (other than Provider Content), learning materials, tools, games, applications, features, functionality, information and services offered by Us through the Sites and/or Platform ((a) through (d) collectively, the “Services”). Services are available subject to Springboard’s sole discretion and certain Services may be limited based on region.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR CONTINUING TO USE THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER UNDERSTAND THAT THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER, WHICH SHALL BE ENFORCEABLE AGAINST YOU UNLESS CONTRARY TO GOVERNING LAW. THIS AGREEMENT ALSO GOVERNS YOUR USE OF THE SERVICES UNDER A FREE TRIAL.
This Agreement, and any additional terms We may provide regarding, and which You may have to accept to access, other products, games and services We may offer you, are incorporated in this Agreement (the “Additional Terms”).
Free Trial or Beta Versions
This Agreement applies to any free trial or beta version of any Services. Any beta version or free trial version of the Services and/or Provider Content (a “Trial Version”) may be subject to Additional Terms. To the extent there is a conflict between those Additional Terms related to the Trial Version and this Agreement, those Additional Terms shall govern to the extent necessary to resolve a conflict. Following expiration or termination of any Additional Terms for a Trial Version, this Agreement shall govern all subsequent use of the Services and/or Provider Content.
Use of the Services is limited to users who are thirteen (13) years of age or older. By using the Services, You represent and warrant to Us that: (a) You are at least thirteen (13) years of age or older; (b) You have read and understand the terms and conditions of this Agreement and agree to be bound by its terms and conditions; (c) if You are entering into this Agreement on behalf of Your employer, You have been legally authorized by Your employer to enter into this Agreement and have the authority to bind Your employer to this Agreement; and (d) Your use of the Services does not violate any law, rule or regulation to which You or Your employer are subject, or any terms, conditions or requirements promulgated by any Third Party Services (as defined below). Certain features of the Services may be subject to heightened age and/or other eligibility requirements and restrictions as indicated. If You are a user between the ages of thirteen (13) and eighteen (18) or under the age of majority in Your jurisdiction, please review this Agreement with Your parent or guardian. Your parent or guardian should agree to this Agreement on Your behalf and parental discretion is advised for all users under the age of eighteen (18) or majority.
- Provider Content Ownership. Except for the rights You grant to Springboard, users of the Services under this Agreement and provide in any applicable Content License, You retain all right, title and interest in Your Provider Content and Your Provider Content Information and any intellectual property rights therein. For purposes of this Agreement, (i) “Provider Content” shall mean any and all games, applications, educational materials, tests, quizzes, movies, interactive tools, graphics, images, audio-visual and audio-only content and tools You provide to Us or make available to Operators in connection with a Content License and We make available on or through the Services, whether by means of download, stream or otherwise and (ii) “Provider Content Information” shall mean the descriptions, format data, descriptive images and other information related to Provider Content, which You provide to Us or make available to Operators in connection with a Content License and We make available on or through the Services, in conjunction with promoting, describing or otherwise providing information about Your Provider Content.
- Ownership of the Services. As between You and Springboard, Springboard (or its licensors) owns the Services, including all of the content (e.g., audio-visual content, photographs, audio, images, illustrations, graphics, video, copy, software, and any other content), code, software, data and materials displayed on or otherwise made available or accessible through the Services, including as contained in any advertisements and the “look and feel” of such content, but specifically excluding Provider Content and Provider Content Information, (collectively, “Springboard IP”). This includes all intellectual property and intellectual property rights in such Springboard IP. When You, as a user of the Services, use or download content from the Services, You do not acquire any ownership of any such Springboard IP.
- User Postings. The Services may provide You with an opportunity to submit, post, email or otherwise make available comments, reviews and feedback via the Services (collectively, “User Postings”). We do not acquire any ownership rights in the User Postings, but do obtain a license from You as detailed herein. You also represent that You own the User Postings posted by You or You otherwise have the right to grant the rights, licenses and privileges described in this Agreement. You hereby grant to Us a non-exclusive, royalty free, irrevocable, perpetual license to use Your User Postings throughout the world for any purpose, in any form or format, on or through any media now known or hereafter developed, including the right to modify, edit, create derivative works and translate such User Postings. All User Postings are and will be considered non-confidential and non-proprietary. User Postings do not reflect the views of Springboard, and You understand that by using the Services, You may be exposed to other people’s User Postings that could be offensive, indecent or objectionable and, as such, Springboard does not guarantee the accuracy, integrity, quality or content of any User Postings. We have the right, but not the obligation, to review any User Posting and to delete, remove, move, edit or reject, without notice to You, for any reason or for no reason. Under no circumstances shall Springboard be liable in any way for User Postings, including, without limitation, errors or omissions in any User Postings, or any loss or damage of any kind incurred as a result of any User Postings made available.
- Data. As between You and Springboard, Springboard owns any and all data, statistics, content, and information, and any derivatives or aggregations thereof, in any form or medium, that is collected, downloaded, uploaded or otherwise received, directly or indirectly, from You or by or through the Services, including any data, content, and information derived, processed or generated by the Services based on an Operator’s, Operator User’s, or Content Provider’s use of and access to the Services (collectively “Data”). No rights or licenses are granted to You to use the Data under this Agreement, except as expressly set forth herein, and Springboard reserves all rights, title, and interest therein.
- Trademarks. The trademarks, logos, service marks, and trade names (collectively the “Trademarks”) displayed on the Services are registered and/or unregistered Trademarks of Springboard and may not be used for any purpose without Our prior written consent, including in any manner that is likely to cause customer confusion, or that disparages or discredits Springboard. You do not receive, by implication or otherwise, any license or right to use any Trademark or Springboard IP displayed on the Services without Our prior written permission, which may be withheld in Our sole discretion.
- Restrictions. Except as We expressly permit (or with respect to certain Provider Content, unless You are the Content Provider of such Provider Content), You may not download, display, copy, distribute, modify, perform, transfer, create derivative works from, sell, or otherwise exploit the Services, any Provider Content, Provider Content Information or Springboard IP. The framing or scraping of or in-line linking to the Services or any Provider Content (unless You are the Content Provider of such Provider Content) or Springboard IP, and/or the use of webcrawler, spidering or other automated means to access, copy, index, process and/or store any Springboard IP or Content, other than as expressly authorized by Us, is prohibited. You further agree to abide by any exclusionary protocols (e.g., Robot.txt, Automated Content Access Protocol (ACAP), etc.) used in connection with the Services. Additionally, You are not permitted to alter, delete or conceal in any manner any copyright, Trademarks, or other notices contained on the Services, including, without limitation, notices on any Provider Content (unless You are the Content Provider of such Provider Content) or Springboard IP You transmit, display, print, stream or reproduce from the Services. Any unauthorized or prohibited use of any Springboard IP, Provider Content, or Provider Content Information may violate or infringe copyright and other laws of the United States and other countries, as well as applicable local and state laws, and may subject You to liability for such unauthorized use.
We want to keep the Services safe and enjoyable for everyone and the use of or access to the Services for unlawful or harmful activities is expressly prohibited. You agree that, while using the Services, You shall not:
- engage in or encourage conduct that would violate any applicable law, rule, regulation, judicial or government order or give rise to civil liability or violate or infringe upon any intellectual property, proprietary, privacy, moral, publicity or other rights of ours or of any other person or entity;
- submit, post, email, display, transmit or otherwise make available through the Services any material, Provider Content or Provider Content Information or take any action that is or is likely to be unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy or publicity rights, harassing, profane, obscene or vulgar, or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
- submit, post, email, display, transmit or otherwise make available through the Services any material, Provider Content or Provider Content Information that You do not have a right to make available under any law, rule or regulation or under contractual or fiduciary relationships (such as content owned by a third party, inside information, proprietary or confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements), or otherwise creates a security or privacy risk for any other person or entity;
- engage in or encourage conduct that affects adversely or reflects negatively on Our brand, the Services, business, goodwill or reputation or causes duress, distress or discomfort to Us or anyone else, or discourage any person from using the Services, or from advertising or becoming a Content Provider or Operator in connection with the Services;
- submit, post, email, display, transmit or otherwise make available through the Services any material that contains a software virus, worm, spyware, Trojan horse or other computer code, file or program designed to interrupt, impair, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- except as expressly permitted herein, use the Services for lawful commercial, business or educational purposes;
- modify, disrupt, impair, alter or interfere with the use, features, function, operation or maintenance of the Services or the rights or use or enjoyment of the Services by any other user;
- impersonate any person or entity or falsely state or otherwise represent Your affiliation with any person or entity;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted on, through or in connection with the Services;
- solicit passwords or personal identifying information for commercial or unlawful purposes from other users or engage in spamming, flooding, harvesting of email addresses or other personal information, “spidering”, “screen scraping”, “phishing”, “database scraping”, or any other activity with the purposes of obtaining lists of other users or other information, including transmitting or facilitating in the transmission of junk email, chain letters, duplicative or unsolicited messages;
- modify, reverse engineer, decompile or disassemble any part of the Services, whether in whole or in part, or create any derivative works from any part of the Services, or encourage, assist or authorize any other person to do so; or
- submit, post, email, display, transmit or otherwise make available through the Services any information, materials or content (and/or engage in or encourage conduct or other activities) that are, or could be perceived as, false, incorrect, misleading or deceptive.
Springboard assumes no responsibility for monitoring the Services for inappropriate, false, incorrect, misleading, deceptive or unlawful content, information, materials or conduct posted by or on behalf of a third party.
If at any time Springboard chooses in its sole discretion to monitor the Services, Springboard nonetheless assumes no responsibility for User Postings, Provider Content or Provider Content Information, assumes no obligation to modify or remove any User Postings, Provider Content or Provider Content Information, and no responsibility for the conduct of any user. Springboard reserves the right to investigate and take appropriate legal action against anyone who, in Springboard’s sole discretion, violates, or is suspected of violating, this Section 5, including, without limitation, reporting You to law enforcement authorities or cooperating with law enforcement who validly request information from Us.
- Platform Fee. If You are an Operator, Springboard will charge fees (the “Platform Fee”) in order for You to use the Services and make the Services available to Operator Users. The Platform Fee, whether subject to a discount or free trial, shall be listed in Your User Account and due and payable to Springboard (or a representative who has been designated in writing by Springboard) on the dates set forth in Your User Account. Springboard reserves the right to increase the Platform Fee. If You do not wish to pay the increased fees You may opt-out of using the Platform.
- Content Fees. If You are a Content Provider, subject to any pricing guidelines and restrictions established by Springboard, You will be required to select, through the Platform, the pricing that You elect to charge for use of Your Provider Content (“Content Fees”). Subject to the terms and conditions of this Agreement, Your Provider Content will be displayed with the Content Fees You establish for each item of Provider Content. Unless otherwise agreed, the Content Fees You select will be the amount charged to Operators for use of Your Provider Content at Operator’s locations. Subject to any restrictions imposed by the Services, You may be permitted to change the Content Fee by editing the Content Fee in Your User Account. Within the first ninety (90) days of first offering a piece of Provider Content via the Platform, You can increase the Content Fee no more than once every two (2) weeks. After ninety (90) days, You can increase the Content Fee no more than once every thirty (30) days. Any subscription Content Fee changes will take effect only after the current term of any applicable subscription. In response to You modifying the Content Fee, Springboard will provide reasonable notice to its Operators of the change (e.g., by a notification in an administrative panel of the Platform and/or by email or other means).
- Service Fee; Net Royalties. Unless otherwise agreed in writing, for each Content Provider, Springboard shall track usage of Your Provider Content in connection with the Service. Based on the Content Fees actually collected by Springboard, we will calculate the portion of the Content Fees owed to You for such use, deduct any applicable taxes and withholdings (“Taxes”) and service fees charged by Springboard in connection with making Your Provider Content available (“Service Fee”) and remit the net amounts (the “Net Royalties”) to You. The applicable Service Fee, Net Royalties and other information used for calculating Your Net Royalties shall be available to You in a report listed in Your User Account. Unless otherwise agreed in writing, for any instance of Your Provider Content that is not made available to an Operator via Springboard, Springboard shall not be responsible for collecting any fees or paying any Net Royalties to You for use of that instance of Your Provider Content. Springboard reserves the right to change the Services Fees. If You do not wish to pay any increased fees, You may opt-out of using the Services. Springboard may establish and publish through the Services a minimum Net Royalty threshold amount. If the Net Royalties owed to You at the end of any reporting period are below the minimum Net Royalty threshold amount, then Springboard shall not be required to pay You such Net Royalties until such time as the Net Royalties due to You are above the minimum Net Royalty threshold amount.
- Additional Fees. Certain features, options, integrations and functionality including third party services (collectively, “Additional Services”) may be available to You for an additional fee. The fees associated with Additional Services will be displayed within Your User Account, on the Site and/or prior to Your purchase of such Additional Services. Springboard reserves the right to increase the fees associated with Additional Services. If You do not wish to pay the increased fees You may opt-out of using the applicable Additional Services.
- Taxes and Tax Reporting. Springboard may report revenue from Provider Content on the Platform to the relevant taxing authorities and collect and remit certain taxes on Your behalf where required by applicable law. If Springboard, under mandatory tax law in the jurisdiction in which the payment is made, is required to withhold certain amounts or a certain portion of the payment due to You, Springboard may deduct such mandatory amounts to the extent required under the applicable tax law from all payments to You, and remit such amounts to the appropriate tax authority. Springboard shall provide you with copies of all necessary documents (e.g. tax receipts received from the applicable tax authority) in order for You to be able to claim and receive any appropriate tax credit.
- Subscriptions for which subscription fees are prepaid, shall terminate at the end of the subscription term (except as otherwise provided herein). There shall be no refunds of subscription fees (except where required by law).
- For Operators, Springboard shall generate and provide to You, at least monthly, through the Services or by email, an invoice for applicable fees, including Content Fees and Platform Fees.
- For Content Providers, Springboard shall determine the Content Fees generated by Your Provider Content (based on amounts actually collected by Springboard) and a calculation of the Net Royalties due to You for the month based on amounts actually collected by Springboard. Springboard shall generate and distribute to Content Providers a report, at least monthly, through its system or by email, showing the Content Fees actually collected based on Your Provider Content and other information used for calculating Your Net Royalties.
- You hereby grant Springboard the right to track, monitor and collect information and Data generated via the Services, including that related to Operators’ and Operator Users’ interaction with and use of the Provider Content, which shall be determined by Springboard in its sole discretion from time to time. Springboard shall share certain Data with You that You may access via Your Account dashboard (or otherwise to the extent Springboard elects to make Data available in other formats). You may use such Data solely for your internal business purposes and may not share such Data with third parties, except as otherwise agreed to in writing.
If You elect to offer or make available Provider Content on or through the Services, You shall be treated as a “Content Provider” and agree to do so solely in accordance with the terms and conditions of this Agreement. Any and all other uses are strictly prohibited. As a Content Provider You may be able to designate or specify in Your User Account limitations on the use of your Provider Content (e.g., the authorized users, locations and platforms that may access, use, and interact with Your Provider Content).
- License Grants. Subject to and conditioned on Your compliance with the terms and conditions of this Agreement and any Additional Terms Springboard makes available through the Services, Springboard grants a non-exclusive, non-assignable, nontransferable and limited right and license to Content Providers to use and access the Services to upload, provide, manage and make available their Provider Content.
- Content License. By submitting, making available and offering Your Provider Content on the Services, You hereby grant to Springboard a non-exclusive, worldwide, license to use, copy, transmit, perform, display, modify (solely for formatting purposes), distribute and make available, solely in accordance with the terms of this Agreement, Your Provider Content and Provider Content Information (including all intellectual property rights embodied therein) on the Services and in connection with the operation, marketing, and/or promotion of Your Provider Content (including by capturing and displaying images of Your Provider Content) and the Services. You agree to grant to Operators (and Operator Users) a non-exclusive, license to download, access and use Your Provider Content and make Your Provider Content and Provider Content Information available to Operator Users in accordance with Your Provider Content terms and conditions that You enter into and supply (each, a “Content License”) in connection with Your Provider Content. Springboard is not a party to the Content License and shall have no obligations or liabilities thereunder.
- Uploading Provider Content; Compliance with Laws; Responsibility for Provider Content. By submitting, making available, uploading and offering Your Provider Content and Provider Content Information on the Services, You represent, warrant and covenant that You have obtained and shall maintain all necessary rights, licenses, permissions and clearances in order to make Your Provider Content and Provider Content Information available and Your provision of Your Provider Content and Provider Content Information shall not violate any applicable laws, rules or regulations (including any laws regarding content and age rating, and the export of data or software to and from all relevant countries) or infringe on the intellectual property rights of any third party. Unless otherwise elected by You via Your User Account, Provider Content You upload to the Springboard Platform will be distributed with a commercially available DRM technology. You are responsible for determining and disclosing the countries in which Your Provider Content may legally be made available. You must ensure that Your Provider Content and Content License and all of Your Provider Content information comply with all applicable country specific laws and regulations. You further represent, warrant and covenant that Your Provider Content shall not contain any viruses, malicious code, trojan horse, worm, time bomb, self-help code, back door, automatic disabling tool, or other software code or routine designed to (or resulting in): (i) damage, destroy or alter any software, hardware, or network; (ii) reveal, damage, destroy or alter any data; (iii) disable any computer program automatically; or (iv) permit unauthorized access to any software, hardware, or network. If You elect to disable the DRM security option provided by Springboard, You shall be and remain solely responsible for the security of Your Provider Content. You, not Springboard, shall be solely responsible for Your Provider Content and Provider Content Information and the consequences of submitting and offering Your Provider Content and Provider Content Information on the Services. The DRM security that Springboard uses is a Third Party Service.
- Right to Reject Content; Content Removal. Springboard shall have the right, in its sole and absolute discretion, to reject, remove or disable access to any of Your Provider Content for any reason. You may elect to no longer make some or all of Your Provider Content available via the Services by so designating through Your User Account. In the event that You elect to remove any of Your Provider Content, Springboard will (1) continue to track usage and collect Content Fees for that Provider Content up until when that Provider Content is removed, and (2) remove that Provider Content within 30 days following written notice by You to Springboard. After any such Provider Content is removed, Springboard shall have no further obligation to collect Content Fees or track usage for that Provider Content, but shall pay You collected Net Royalties for amounts due up to the time of removal. Terminating display of such Provider Content from the Services does not affect the rights, under any Content License, of Operators that have previously downloaded or otherwise obtained Your Provider Content or remove Your Provider Content from any computers or other devices to which it has been downloaded. If You remove all of Your Provider Content from the Services, Springboard may elect to terminate Your User Account.
- Provider Content Placement. Unless otherwise agreed in writing, Springboard reserves the right, in its sole discretion, to determine whether or not and when to display Your Provider Content in the Services and to display Your Provider Content in the Services in any order or level of prominence as it deems appropriate in its sole discretion.
- Provider Content Support. You are solely responsible for support and maintenance of Your Provider Content. Unless otherwise agreed, Springboard shall not have any obligation to provide support or maintenance for any of Your Provider Content. You are solely responsible for ensuring Your Provider Content’s compatibility with the virtual reality products and services for which they are intended. You must clearly communicate to Operators any compatibility or other requirements which are necessary for users to use Your Provider Content.
If You elect to enter into a Content License with a Content Provider and make available its Provider Content, whether at one of Your authorized locations or via Your platform or otherwise, You shall be treated as an “Operator” and agree to do so solely in accordance with the terms and conditions of this Agreement and the terms and conditions of the applicable Content License. Any and all other uses are strictly prohibited. As an Operator You may designate or specify which Provider Content You wish to make available to your Operator Users. You may also elect to purchase Additional Services for an Additional Fee.
- License Grants. Subject to and conditioned on Your compliance with the terms and conditions of this Agreement, any applicable End User License Agreement and any Additional Terms Springboard makes available through the Services, Springboard grants a personal, non-exclusive, non-assignable, nontransferable and limited right and license to Operator to use and access the Services to manage its arcades or other virtual reality operations and enable the provision and availability of certain Provider Content to Operator Users.
- Accessing Provider Content. Prior to accessing, displaying or making any Provider Content available, whether at Your authorized location, on Your platform, via the Services or otherwise, You agree to enter into a Content License with a Content Provider. Unless otherwise elected by You via Your User Account, Provider Content shall be downloaded via the Services with the DRM security. By making the Provider Content available and/or providing Operator Users with access to such Provider Content, You represent, warrant and covenant that (i) You have entered into all necessary Content Licenses with each applicable Content Provider; (ii) You have not modified any age range or age gating requirements associated with any particular piece of Provider Content; and (iii) You have obtained and shall maintain all necessary rights, licenses, consents, permissions and clearances in order to make the Provider Content available and Your provision of such Provider Content to Operator Users shall not violate any applicable laws, rules or regulations (including any laws regarding content and age rating, and the export of data or software to and from all relevant countries) or infringe on the intellectual property rights of any third party. You further acknowledge and agree that the availability to You of Provider Content shall terminate in the event that: (1) the Content Provider terminates Your Content License or elects to no longer make its Provider Content available on via the Springboard Platform; (2) if You breach the terms and conditions of Your Content License; and/or (3) the Provider Content is exclusively offered to Operators. Operator acknowledges and agrees that Springboard may access the Services and Your User Account at any time and for any reason with or without Operator’s prior permission, including to provide support to Operator and audit Operator’s use of the Services and the Provider Content.
- Operator Users. You are solely responsible for the acts and omissions of the individuals, customers or users who access, use, play and interact with Provider Content at Your authorized locations or on Your platform or via Your User Account (“Operator Users”). Springboard is not a party to the Content License and shall have no obligations or liabilities thereunder, nor any obligations or liabilities to any Operator User. You further agree to indemnify Springboard for any third party claims arising from any Operator User’s use of, access to or interaction with the Services and/or Provider Content.
You acknowledge and agree that by accessing or interacting with the Services, some third-party materials and information, including any software (e.g., the SteamVR® provided by Valve Corporation), components, accounts, licenses, advertisements, documents, data, content, specifications, products, games, equipment or components that are used in conjunction with, or of or relating to the Services, or use in connection with the Services (collectively, “Third Party Materials”) may be displayed, viewed, accessed or provided in connection with Your use of the Services and/or Provider Content. Springboard does not own or control any Third Party Materials and it shall not incur any obligation, responsibility or liability in connection with such Third Party Materials.
Certain Services may require data access, and the provider of data access (e.g., network operator, wireless carrier, etc.) for Your device may charge You data access fees in connection with Your use of such including, without limitation, wireless carrier messaging and other communication, messaging and data fees and charges. We will not be responsible for any such data access fees and charges in connection with Your use of any Services. Further, the use or availability of certain Services may be prohibited or restricted by Your wireless carrier and/or data access provider, and not all Services may work with all wireless carriers, networks, platforms, services or devices.
- Notice. If You are a copyright owner or an agent thereof and believe that any content infringes upon Your copyrights, You may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by emailing Our Copyright Agent at [email protected] with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
- A statement that You have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that You are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You may direct copyright infringement notifications to Our DMCA Agent at: [email protected] For clarity, only DMCA notices should go to the Copyright Agent and not any other feedback, comments, requests for technical support, or other communications. You acknowledge that if You fail to comply with all of these requirements, Your DMCA notice may not be valid.
- Counter-Notice. If You believe that Your content that was removed (or to which access was disabled) is not infringing, or that You have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the material in Your content, You may send a counter-notice containing the following information to the Copyright Agent:
- Your physical or electronic signature;
- Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- A statement that You have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- Your name, address, telephone number, and e-mail address, a statement that You consent to the jurisdiction of the federal courts in Delaware, and a statement that You will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Springboard may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the Content Provider or user, the removed content may be replaced, or access to it restored, in ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at Springboard's sole discretion.
This Agreement, and any rights, licenses and privileges granted herein, may not be transferred or assigned by you, but may be assigned or transferred by Springboard without restriction, notice or other obligation to you.
- Term. This Agreement shall commence on the date You begin using the Services and shall continue until terminated under the terms of this Agreement.
- Termination by Either Party. Either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) makes a general assignment for the benefit of creditors; (ii) becomes the subject of an involuntary petition in bankruptcy that is not dismissed within 45 days; (iii) files any voluntary petition in bankruptcy; or (iv) has a receiver, trustee, or custodian or similar agent appointed for its business.
- Termination by Springboard. Springboard may terminate this Agreement with You upon written notice to You at any time. Subject to the terms and conditions of this Agreement, upon termination, Springboard may disable Your access to Your Account.
- Termination by Operator. An Operator may terminate this Agreement at any time, without prior notice to Springboard, by disabling its Account via the Platform.
- Effects of Termination – Operator. Except as may be expressly set forth herein, upon disabling Your Account and/or other termination of this Agreement with an Operator for any reason, You will no longer be able to use the Services (e.g., to download Provider Content or launch any content via the Platform or otherwise) and Springboard will no longer track any content usage for your stations. Except as may be expressly set forth herein, upon termination of this Agreement, all licenses granted to you by Springboard shall terminate. Subject to Springboard’s discretion, if You voluntarily elected to disable Your Account (and were not in breach, and this Agreement was not otherwise terminated by Springboard), You may be able to reactivate Your Account. Springboard may continue to provide You access to certain Account information that Springboard elects to make available to You for a duration of Springboard’s choosing. Nothing herein precludes You from using Provider Content upon termination of this Agreement (subject to You maintaining a valid license from the Content Provider), provided that you not use the Platform or any of the Services in connection with such continued use. In the event of termination, any fees due from You prior to termination shall remain payable to Springboard and any fees due from Springboard to You prior to termination shall remain payable to You. Springboard may delete Your name as an active Operator in its report to Content Providers. Upon request by You, Springboard may permanently disable Your access to Your Account.
- Termination by Content Provider. A Content Provider may terminate this Agreement by providing Springboard 30 days prior written notice. From the date of such written notice and prior to termination (30 day period), You may continue to interact with the Platform, provided however, You shall not upload any new Provider Content, change any Content Fees for any of Your Provider Content or change any Provider Content Information. Your Provider Content shall remain on the Platform for the 30 day period, Springboard shall continue to track usage, collect fees and pay You any Net Royalties due prior to termination. Springboard shall notify Operators that Your Provider Content shall be removed from the Platform. Upon expiration of the 30 day period, this Agreement shall terminate.
- Effects of Termination – Content Provider. Upon termination of this Agreement with a Content Provider for any reason, Springboard shall disable Content Creator’s access to its Account (and any information contained therein), Content Provider shall not access the Services and all licenses granted by Springboard to Content Provider shall terminate. Springboard shall cease tracking usage of and collecting any fees for any further use of Your Provider Content and remove Your Provider Content from its Services. Any fees due from You prior to termination shall remain payable to Springboard and any fees due from Springboard to You prior to termination shall remain payable to You. Springboard shall send You a final report. Springboard shall be permitted to retain any Data it has collected relating to your Provider Content.
You agree to indemnify, defend and hold Springboard and its affiliates, and their respective successors and assigns, present and former directors, officers, employees, representatives, agents, licensors, partners, suppliers and service providers harmless from any and all claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees), arising in any way out of or in connection with (a) Your, or any Operator User’s, use of the Services; (b) Your, or any Operator User’s, breach or violation this Agreement; or (c) Your User Postings or Provider Content or any Operator User’s User Postings or any Provider Content Information. Springboard reserves the right to assume the exclusive defense and control of any matter subject to indemnification by You and all negotiations for its settlement or compromise, and You agree to fully cooperate with Us upon Our request.
We may modify this Agreement from time to time, and at any time, without notice to You, for any reason, in Our sole discretion. We may post or display notices of material changes on Our Sites and/or notify You via other electronic means. The form of such notice is at Our discretion. Once We post or make them available on Our Sites, these changes become effective immediately and if You use the Services after they become effective it will signify Your agreement to be bound by the changes. We recommend that You check back frequently and review this Agreement regularly so You are aware of the most current rights and obligations that apply to You.
- DISCLAIMERS. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT WITH THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, PROVIDER CONTENT AND THIRD-PARTY MATERIALS AND THIRD-PARTIES UTILIZED BY OPERATORS AND SPRINGBOARD IS NOT RESPONSIBLE FOR ANY LIMITATIONS, DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. YOUR OR ANY OPERATOR USER’S USE OF THE SERVICES OR ANY ITEMS OBTAINED THROUGH THE SERVICES IS AT YOUR OR ANY OPERATOR USER’S OWN RISK. EXCEPT FOR ANY WARRANTIES BY SPRINGBOARD EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES, PROVIDER CONTENT, PROVIDER CONTENT INFORMATION AND SPRINGBOARD IP ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OR STATEMENTS OF ANY KIND, EXPRESS OR IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER SPRINGBOARD NOR ANY PERSON ASSOCIATED WITH SPRINGBOARD MAKES ANY STATEMENT, WARRANTY, OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SERVICES, PROVIDER CONTENT, PROVIDER CONTENT INFORMATION OR SPRINGBOARD IP. WITHOUT LIMITING THE FOREGOING, NEITHER SPRINGBOARD OR ANY PERSON ASSOCIATED WITH SPRINGBOARD MAKES ANY STATEMENT, WARRANTY, OR REPRESENTATION THAT THE FEATURES AND FUNCTIONS CONTAINED IN THE SERVICES, PROVIDER CONTENT OR SPRINGBOARD IP WILL MEET YOUR OR AN OPERATOR USER’S SPECIFIC REQUIREMENTS OR EXPECTATIONS OR THAT THE OPERATION OF THE SERVICES, PROVIDER CONTENT OR USE OF THE SPRINGBOARD IP WILL BE UNINTERRUPTED OR ERROR FREE OR INTEROPERABLE OR COMPATIBLE WITH OTHER SOFTWARE OR SERVICES, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICES, PROVIDER CONTENT OR SPRINGBOARD IP WILL BE UPDATED, UPGRADED OR IMPROVED, THAT THE SERVICES, PROVIDER CONTENT, PROVIDER CONTENT INFORMATION, SPRINGBOARD IP, OR SPRINGBOARD SYSTEMS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. SPRINGBOARD HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE, TITLE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. NO VERBAL OR WRITTEN REPRESENTATIONS, INFORMATION OR ADVICE GIVEN BY SPRINGBOARD OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY EXPRESS WARRANTIES MADE BY SPRINGBOARD IN THIS AGREEMENT.
- LIMITATION OF LIABILITY. IN NO EVENT SHALL SPRINGBOARD, OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS, OR EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY DAMAGES WHATSOEVER, INCLUDING: (I) LOSS OF PRODUCTION, USE, BUSINESS, INCOME, REVENUE, PROFIT, OR DIMINUTION IN VALUE; (II) IMPAIRMENT, INABILITY TO USE, LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (III) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (IV) ANY LOSS, DAMAGE OR IMPAIRMENT DUE TO ANY CLAIMS OR ACTIONS FOR PERSONAL INJURY OR PROPERTY DAMAGE ARISING OUT YOUR USE OR ACCESS TO THE SERVICES (INCLUDING ANY INJURY OR PROPERTY DAMAGE THAT OCCURS AT AN OPERATOR’S LOCATION); OR (V) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES (INCLUDING SUCH LOSSES IDENTIFIED IN (I) – (IV) OF THIS PROVISION TO THE EXTENT THOSE LOSSES OR PORTIONS THEREOF ARE NOT DIRECT LOSSES), REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF SPRINGBOARD AND ITS LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED EITHER $200.00 OR THE AMOUNT OF FEES PAID TO SPRINGBOARD DURING THE TWO (2) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM OR ACTION AROSE, WHICHEVER IS LESS. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. OPERATORS SHALL BE RESPONSIBLE FOR ALL CLAIMS AND DAMAGES RESULTING FROM THE MISUSE OF THE SERVICES BY OPERATOR, ITS AUTHORIZED USERS, OR OPERATOR’S USERS.
For assistance with technical issues or customer support inquiries related to the Services, please send an email to: [email protected] or call Us at 1.855.728.7155. Unless otherwise agreed by Springboard, You are solely responsible for support and maintenance of Your Provider Content and Springboard shall not have any obligation to provide support or maintenance for any of Your Provider Content. However, in the event that Springboard elects to offer Pro Support Services, You may be permitted to purchase additional support, which may cover support and technical issues related to Your Provider Content. You are solely responsible for ensuring Your Provider Content’s compatibility with the virtual reality products and services for which they are intended. You must clearly communicate to users of the Services or Operator Users any compatibility requirements which are necessary for users to use Your Provider Content.
If You are a resident of the United States (including its possessions and territories), You agree that any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between You and Springboard or its successors or assigns shall exclusively be settled through binding and confidential arbitration.
Arbitration shall be subject to the Federal Arbitration Act and not any state or provincial/territorial arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”).
In the case of arbitration and where permitted by law, You are thus agreeing to give up Your right to go to court to assert or defend Your rights. Your rights will be determined by a neutral arbitrator and not a judge or jury. You are entitled to a fair hearing, but the arbitration procedures are simpler and more limited than rules applicable in court. Arbitrator decisions are as enforceable as any court order and are subject to very limited review by a court.
In the case of arbitration and where permitted by law, You and Springboard must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR SPRINGBOARD MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) in the event that You are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Springboard will pay as much of Your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (4) Springboard also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitration shall be confidential, and neither You nor We may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law.
Notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Delaware in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Delaware for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
If any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court located in Delaware.
For more information on AAA, the Rules and Procedures, or the process for filing an arbitration claim, You may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
- Governing Law. This Agreement shall be governed and interpreted by the laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware.
- Interpretation. For purposes of this Agreement: (i) the words "include," "includes" and "including" are deemed to be followed by the words "without limitation"; (ii) the word "or" is not exclusive; and (iii) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
- Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement shall not be affected and will continue in full force and effect.
- Export Regulations. Springboard is subject to regulation by the agencies of the U.S. Government, including the U.S. Department of Commerce and State, which prohibit export or diversion of certain technological products to certain countries. You shall comply in all respects with all applicable export and re-export restrictions and not permit anyone to use or access the Services in a U.S. embargoed country or in violation of any U.S. export law or regulation. You also agree to indemnify, defend, and hold Springboard harmless from any loss, damages, liability, or expenses incurred by Springboard as a result of Your failure to comply with any export regulations or restrictions.
- Force Majeure. In no event will Springboard be liable or responsible to you, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by any circumstances beyond Springboard's reasonable control (a "Force Majeure Event"), including service interruptions by third-party providers, denial of service attacks, acts of God, war, riot, fires, floods, epidemics, or failure of public utilities or public transportation systems, or national or regional shortage of adequate power or telecommunications systems. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more.
- Entire Agreement. Unless otherwise expressly agreed in writing between the parties, this Agreement contains the entire understanding and agreement between You and Springboard concerning the Services and supersedes any and all prior or inconsistent understandings relating to the Services and Your use thereof. This Agreement cannot be changed orally.
- Survival; Claims; Waiver. Any provision which must survive in order to allow Us to enforce its meaning shall survive the termination of this Agreement; however, no action arising out of this Agreement or Your use of the Services, regardless of form or the basis of the claim, may be brought by You more than one (1) year after the cause of action has arisen (or if multiple causes, from the date the first such case arose). The failure of Springboard to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision.
- “AAA” has the meaning ascribed in Section 19.
- “Additional Terms” has the meaning ascribed in Section 1.
- “Additional Services” has the meaning ascribed in Section 6(d).
- “Agreement” has the meaning ascribed in Section 1.
- “Data” has the meaning ascribed in Section 4(d).
- “DMCA” has the meaning ascribed in Section 12(a).
- “Content Fees” has the meaning ascribed in Section 6.
- “Content License” has the meaning ascribed in Section 8(b).
- “Content Provider” has the meaning ascribed in Section 8.
- “Force Majeure Event” has the meaning ascribed in Section 20(e).
- “Platform” has the meaning ascribed in Section 1.
- “Platform Fee” has the meaning ascribed in Section 6.
- “Provider Content” has the meaning ascribed in Section 4(a).
- “Provider Content Information” has the meaning ascribed in Section 4(a).
- “Operator” has the meaning ascribed in Section 9.
- “Operator Users” has the meaning ascribed in Section 9(c).
- “Net Royalties” has the meaning ascribed in Section 6(c).
- “Rules and Procedures” has the meaning ascribed in Section 19.
“Scheduler” has the meaning ascribed in Section 1.
“Service Fee” has the meaning ascribed in Section 6(c).
“Services” has the meaning ascribed in Section 1.
“Sites” has the meaning ascribed in Section 1.
“Software” has the meaning ascribed in Section 1.
“Springboard” has the meaning ascribed in Section 1.
“Springboard IP” has the meaning ascribed in Section 4(b).
“Taxes” has the meaning ascribed in Section 6(c).
“Third Party Materials” has the meaning ascribed in Section 10.
“Third Party Services” has the meaning ascribed in Section 10.
“Trademarks” has the meaning ascribed in Section 4(e).
“Trial Version” has the meaning ascribed in Section 1.
“User Account” has the meaning ascribed in Section 3.
“User Credentials” has the meaning ascribed in Section 3.
“User Postings” has the meaning ascribed in Section 4(c).