Wave Terms of Service
Effective Date: 04/01/2019
These Wave Terms of Service (“Terms of Service”) apply when you download, access or use Wave software application, and the related technology and services provided through the application (the application and the related technology and services constituting the “Service”). The Service is provided to you by WaveVR, Inc. (“Company,” “we,” “us” and “our”). We prepared these Terms of Service to explain the terms that apply to your use of the Service. In order to use the Service, you will be required to affirmatively accept these Terms of Service.
Notice Regarding Dispute Resolution: These Terms of Service contain provisions that govern how claims you and we may have against each other are resolved (see Section 13 below), including an agreement and obligation to arbitrate disputes, which will, subject to limited exceptions, require you to submit claims you have against us to binding arbitration, unless you opt-out in accordance with Section 13(E). Unless you opt-out of arbitration: (a) you will only be permitted to pursue claims against us on an individual basis, not as part of any class or representative action or proceeding and (b) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
1. Accessing the Service.
A. Virtual Reality Devices. You must have an Internet-enabled third party virtual reality headset device (a “VR Device”) that is compatible with the Service in order to access and use certain features and functionality of the Service. You are solely responsible for ensuring that your VR Device is compatible with the Service. The applicable third party provider of the VR Device, and not the Company, is solely responsible for any warranties, liabilities and all other matter relating to the VR Device.
B. Desktop Application. You must have an internet-enabled third party Windows PC (a “PC computer”) that is compatible with the Service in order to access and use certain features and functionality of the Service. You are solely responsible for ensuring that your PC Computer is compatible with the Service. The applicable third party provider of the PC Computer, and not the Company, is solely responsible for any warranties, liabilities and all other matter relating to the PC Computer.
C. Registration with Third Party Platforms. You will only be able to access and use the Service if you are a registered user of a third party platform that allows you to access the Service (each, a “Third Party Platform”). Please review the terms of service that are applicable to the Third Party Platform to understand your rights and obligations in connection with your use of the applicable Third Party Platform. You agree to comply with, and your license to use the Service is conditioned upon, your compliance with the terms of service that are applicable to the Third Party Platform. To the extent that other terms and conditions from the applicable Third Party Platform are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms of Service, the more restrictive or conflicting terms and conditions in these Terms of Service will apply to your use of the Service.
2. Affirmative Representations Regarding Your Use of the Service. When you use the Service, you represent that: (A) the information you submit is truthful and accurate; (B) your use of the Service and your use of services available on the Service do not violate any applicable law or regulation; (C) you are 16 years of age or older; and (D) you are otherwise of sufficient legal age or otherwise have legal capacity to legally enter into these Terms of Service.
4. Updates to these Terms of Service. We may modify these Terms of Service from time to time. We will notify you of material changes to these Terms of Service by posting the amended terms on the Service. If you do not agree with the proposed changes, you should discontinue your use of the Service prior to the time the new Terms of Service take effect. If you continue using the Service after the new terms take effect, you will be bound by the modified Terms of Service.
5. Rules Governing User Contributions; Prohibited Activities.
A. User Contributions. If you are a registered user of the Service and you are logged in to your user account, you may be able to submit, create, post, transmit or make available music, video, images, photos, graphics, data, text, messages, comments or other audio, visual or other content to or through the Service (collectively, “Contributions”). You are entirely responsible for the content of, and any harm resulting from, any Contributions, and all Contributions by other users are the sole responsibility of those users. We may review Contributions to determine whether they violate our policies or applicable law, and we may remove, disable access to or refuse to transmit or display Contributions that we reasonably believe violate our policies or the law. You understand and agree that, unless expressly stated, we in no way control, verify, or endorse any of the content or information provided by users of the Service, including links or messages. When you submit, create, post, transmit or make available a Contribution on or through the Service, you represent and warrant that you:
(1) Own or have sufficient rights to submit, create, post, transmit or make available your Contributions on or through the Service, to grant the rights in your Contributions that you grant in these Terms of Service and that our use of your Contributions as set forth in these Terms of Service will not violate any other person’s rights;
(2) Will not submit, create, post, transmit or make available Contributions that violate our or any other person’s privacy rights, publicity rights, intellectual property rights (including without limitation trademark, patent or copyrights) or contract rights;
(3) Have fully complied with any third-party licenses relating to Contributions and shall pay all royalties, fees and any other monies required to be paid in connection with Contributions that you submit, create, post, transmit or make available on or through the Service;
(4) Will not submit, create, post, transmit or make available Contributions that: (i) are defamatory, damaging, disruptive, unlawful, inappropriate, offensive, inaccurate, pornographic, vulgar, indecent, profane, hateful, racially or ethnically offensive, obscene, lewd, lascivious, filthy, threatening, excessively violent, harassing, or otherwise objectionable; (ii) incite, encourage or threaten immediate physical harm against another, including but not limited to, Contributions that promote racism, bigotry, sexism, religious intolerance or harm against any group or individual; or (iii) contain material that solicits personal information from anyone under the age of 13 or exploits anyone in a sexual or violent manner;
(5) Will not submit, create, post, transmit or make available Contributions that contain advertisements or solicit any person to buy or sell products or services; and
(6) Will not submit, create, post, transmit or make available Contributions that constitute, contain, install or attempt to install or promote, whether on our or others’ computers or equipment, spyware or malware, or other computer code designed to enable you or others to gather information about or monitor the online or other activities of another party.
B. Prohibited Activities. In addition to the obligations described in Section 5(A), you agree that in connection with your use of the Service, you will not:
(1) Use the Service, intentionally or unintentionally, in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation or that is in conflict with the spirit or intent of the Service;
(2) Engage in any activity that is abusive, violent, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable or offensive, or that would otherwise be deemed criminal if done in the real world;
(3) Attempt to, or harass, abuse, or harm, or advocate or incite harassment, abuse or harm of another person or group;
(4) Make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity, or other right of any person or entity or impersonates any other person;
(5) Use the Service or any part thereof for any commercial purpose, including but not limited to (i) communicating or facilitating any commercial advertisement or solicitation, or (ii) gathering or transferring Virtual Goods for sale;
(6) Institute, assist or become involved in any type of attack, including without limitation distribution of a virus, denial of service attacks upon the Service, or other attempts to disrupt the Service or any other person’s use or enjoyment of the Service;
(7) Attempt to gain unauthorized access to the Service, accounts registered to others or to the computers, servers, or networks connected to the Service by any means other than the user interface provided by the Company, including but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device, or software that is part of the Service;
(8) Use the Service or any part thereof for performing services within the virtual reality experience, such as power-leveling or Virtual Good (as this term is defined below) collection services, in exchange for payment outside the Service;
(9) Transmit unauthorized communications through the Service, including junk mail, chain letters, or spam;
(10) Interfere or attempt to interfere with the proper functioning of the Service or connect to or use the Service in any way not expressly permitted by these Terms of Service;
(11) Use any unauthorized third party software that accesses, intercepts, “mines”, or otherwise collects information from or through the Service or that is in transit from or to the Service, including, without limitation, any software that reads areas of RAM or streams of network traffic used by the Service to store;
(12) Make any automated use of the system, or take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure;
(13) Bypass any robot exclusion headers or other measures we employ to restrict access to the Service or use any software, technology, or device to send content or messages, scrape, spider, or crawl the Service, or harvest or manipulate data;
(14) Except where permitted by law or relevant open source licenses, reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the Service;
(15) Copy, modify or distribute rights or content from the Service or the Company’s copyrights or trademarks, or use any method to copy or distribute the content of the Service except as specifically allowed in these Terms of Service; or
(16) Solicit, collect, harvest or post anyone’s private information, including personally identifiable information (whether in text, image or video form), identification documents, or financial information through the Service.
6. Rights in Contributions
A. Ownership of Contributions. We do not claim any ownership rights in the Contributions that you submit, create, post, transmit or make available on or through the Service. After posting your Contributions on or through the Service, you continue to retain any rights you may have in your Contributions, including any intellectual property rights or other proprietary rights associated with your Contributions, subject to the license you grant to us below.
B. Grant of License for Contributions. By making a Contribution to the Service, you grant to us a perpetual, non-exclusive (meaning you are free to license your Contribution to anyone else in addition to us), fully-paid, royalty-free (meaning that we are not required to pay you to use your Contribution), sublicensable (so that we can use affiliates, subcontractors and other partners such as wireless carriers and hosted service providers to make the Service available to you) and worldwide (because the Internet is global in reach) license to use, edit, modify, create derivative works of, communicate, publish, publicly perform, publicly display, make available to the public, copy, reproduce, disseminate, market and distribute the Contribution in connection with the Service, our business, or the promotion of the Service or our business in any media formats and through any media channels now known or subsequently created. This license does not grant us the right to sell your Contributions. If you terminate your user account or we terminate your access to the Service, your Contributions and other information and data related to your user account will no longer be accessible through the Service, however we may retain your Contributions in our archived files and your Contributions may continue to be used by and accessible to other users of the Service, for example, because your Contributions were saved or re-shared by other users of the Service. By making a Contribution to the Service in a portion of the Service accessible to other users, you also grant to other users a non-exclusive license to access and use those Contributions as permitted by these Terms of Service and the functionality of the Service. It is your sole responsibility to ensure that you have the necessary rights to grant these licenses for your Contributions.
7. Our Intellectual Property Rights. Except for your Contributions and the Contributions of other users of the Service, all of the content on the Service, including all music, video, images, photos, graphics, data, text, messages, comments or other audio, visual or other content and names and likenesses (“Materials”) and the trademarks, service marks, brands, logos and patented technologies contained on or in the Service, are owned by or licensed to us and are subject to copyright, patent, trademark, publicity rights and other intellectual property or proprietary rights under United States and foreign laws and international conventions. Using our Service does not give you ownership of any intellectual property rights in the Service, the Materials, any Contributions, or any other content you access through the Service, or any rights to use any of them except as explicitly set forth in these Terms of Service. You may not use any content from the Service unless you obtain permission from its owner or are otherwise permitted by law. These Terms of Service do not grant you any rights to use any trademarks, service marks, brands or logos used by us in the Service or otherwise. The Service and the Materials are for your information and personal use only and not for commercial exploitation. We reserve all rights in and to the Service and the Materials. If you download, print or otherwise create a copy of the Materials for your own personal use, you must retain all trademark, copyright and other proprietary notices contained in and on the Materials.
8. Copyright Policy
We comply with the provisions of the Digital Millennium Copyright Act (the “DMCA”) applicable to Internet service providers (17 U.S.C. §512, as amended), and we respect the rights of content creators and will promptly remove or disable access to any content that violates these rights. We also ask users to be responsible in making sure that the content they submit, create, post, transmit or make available on or through the Service does not infringe any copyrights.
If you believe that material available on or through the Service infringes one or more of your copyrights, please send a notification (a “DMCA Notification”) including all of the information described below to our DMCA Agent by mail or email using the contact information provided below. Please provide any information you can to allow us to quickly locate and address the material at issue.
To the extent possible, we will in our discretion remove or disable access to the content complained of, and in appropriate circumstances, we will terminate the account, streaming privileges, and/or access rights of repeat infringers.
In addition, we will take reasonable steps to notify and send a copy of any DMCA Notification to the affected user, who may submit a counter notification (a “DMCA Counter Notification”) that could result in our restoring transmission abilities or content disabled or removed in response to a DMCA Notification.
You may send a DMCA Notification to DMCA@wavexr.com with the subject “Attn: COPYRIGHT INFRINGEMENT DESIGNATED AGENT” or send a notification to our DMCA Agent at:
Attn: COPYRIGHT INFRINGEMENT DESIGNATED AGENT
5205 Airport Blvd
Austin, TX 78751
Phone: (512) 265-5287
A. DMCA Notifications From Copyright Owners. All DMCA Notifications must include the following:
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 or in a single transmission are covered by a single notification, a representative list of such works.
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 us to locate the material.
Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and email address.
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.
A statement that the information set forth 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.
A copy of your DMCA Notification may be sent to the person who submitted, created, posted, transmitted or made available the material addressed in the DMCA Notification.
Please be advised that under Section 512(f) of the Digital Millennium Copyright Act you may be held liable for damages and attorneys’ fees if you make material misrepresentations in a DMCA Notification.
B. DMCA Counter Notifications From Users. If you, the user, receive a DMCA Notification because your content is claimed to infringe a copyright, but you believe in good faith that your content is not infringing or that you have authorization to use the material, you may respond to the DMCA Notification by sending a DMCA Counter Notification to our DMCA Agent (whose contact information is provided above) that includes:
Your physical or electronic signature;
Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a United States District Court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which Wave may be found, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
You may also submit a DMCA Counter Notification to DMCA@wavexr.com.
If you submit a DMCA Counter Notification, a copy of the counter notification, including your name and contact information, will be sent to the copyright owner or person who provided the DMCA notification.
Please note that sending a DMCA Counter Notification may not result in your access to the Service or content being restored if the copyright owner chooses to file suit against you within ten (10) business days of receiving the counter notification.
9. Intellectual Property Policy
If you believe that content available on or through the Service infringes one or more of your copyrights, please review and follow the instructions set forth under our Copyright Policy in Section 8 above.
If you believe that content available on the Service infringes your trademark, right of publicity, or other intellectual property right, please send a notification to our Intellectual Property Rights Agent as follows:
Attn.: INTELLECTUAL PROPERTY AGENT
5205 Airport Blvd
Austin, TX 78751
Phone: (512) 265-5287
The notification should include the following information:
Your name or the name of the owner of the trademark or other intellectual property right being asserted.
Identification of the trademark or other intellectual property right you claim is being violated.
Identification of the material that you believe violates your trademark or other intellectual property right and information reasonably sufficient to permit us to locate the material.
An explanation of how the use or material complained of violates your trademark or other intellectual property right.
Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and email address.
A statement that you have a good faith belief that the use described above is not authorized by the rights owner, its agent, or the law; that the information contained in the notice is accurate, and that you are authorized to act on behalf of the owner of the intellectual property right at issue.
By providing us with the above information, you acknowledge and agree that your information and a copy of your notification may be provided to the user responsible for submitting, creating, posting, transmitting or making available the material you claim is infringing and to other third parties for review and processing.
10. Our Management of the Service; User Misconduct
A. Our Right to Manage the Service. We reserve the right, but do not undertake the obligation to: (i) monitor or review the Service for violations of these Terms of Service and for compliance with our policies; (ii) report to law enforcement authorities and/or take legal action against anyone who violates these Terms of Service; (iii) refuse, restrict access to or the availability of, or remove, delete, edit or disable (to the extent technologically feasible) any Materials or any Contribution on the Service; (iv) manage the Service in a manner designed to protect our and third parties’ rights and property or to facilitate the proper functioning of the Service; (v) screen our users or members, or attempt to verify the statements of our users or members; (vi) monitor disputes between you and other users; and/or (vii) terminate or block you and other users for violating these Terms of Service.
B. Interactions with other Users. You are solely responsible for your interactions with other users of the Service. Please note that there are risks that may arise when dealing with strangers, including persons who may be acting under false pretenses. Please choose carefully the information you provided through the Service and that you give to other users of the Service. Information provided through the Service by other users of the Service may be offensive, harmful or inaccurate, and in some cases may be mislabeled or deceptively labeled. You assume all risks associated with dealing with other users with whom you come in contact through the Service. Opinions, comments and other statements made by users of the Service do not represent the opinions or statements of the Company and the Company does not support or endorse opinions or statements made by users of the Service.
C. Reporting Abuse. We want use of the Service to be a positive experience for our users, and we expect that our users will treat each other with dignity and respect. However, we cannot control the actions of users of the Service. If you are the subject of abuse by other users, or you witness abuse by a user, please contact us at firstname.lastname@example.org.
D. Our Right to Terminate Users. WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS OF SERVICE, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION, AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SERVICE TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN THESE TERMS OF SERVICE, OR OF ANY APPLICABLE LAW OR REGULATION, OR FOR VIOLATING THE RIGHTS OF ANY THIRD PARTY.
11. Virtual Goods. You understand that at times you may “earn” “buy” or “purchase” (A) virtual currency, including but not limited to virtual coins, cash, tokens, or points, all for use in the Service; or (B) virtual in-game items (together with virtual currency, “Virtual Goods”), you do not in fact “own” the Virtual Goods and the amounts of any Virtual Good do not refer to any credit balance of real currency or its equivalent. By purchasing or receiving any Virtual Goods, all that you receive is a limited license to use them as part of the Service. You may not sell or transfer, or attempt to sell or transfer, Virtual Goods, except as specifically permitted as part of the Service. We do not provide refunds for Virtual Goods and Virtual Goods may never be redeemed or sold by you for “real world” money, goods, services or anything of monetary value.
12. Health and Safety Precautions. The Service may contain flashing lights, realistic images and simulations. Some people may experience side effects such as motion sickness, epileptic seizures, momentary loss of consciousness, dizziness, or nausea when viewing certain types of flashing lights or graphics that are included in the Service. This may happen where a person has not previously suffered in this way and has no known symptoms or history of these side effects. If you have a condition which makes this possible or you have experienced similar symptoms, please consult a doctor before using the Service. If you feel dizzy, tired, fatigued or uncomfortable when using the Service, please stop using the Service. If these symptoms continue after you have stopped using the Service, please consult a doctor.
PLEASE FOLLOW THESE PRECAUTIONS WHENEVER USING THE SERVICE:
Only use the Service in a safe environment.
Be aware of your surroundings before using the Service.
Do not use the Service if you are sick, under the influence of alcohol or drugs, or hung-over.
Do not use the Service while in a moving vehicle such as a car, bus, or train.
Do not use the Service for too long at any one time, we suggest you take a 10 to 15 minute break every 30 minutes.
13. Legal Disputes and Arbitration Agreement
Please Read This Following Clause Carefully – It May Significantly Affect Your Legal Rights, Including Your Right to File a Lawsuit in Court
A. Initial Dispute Resolution. We are available by email at email@example.com to address any concerns you may have regarding your use of the Service. Most concerns may be quickly resolved in this manner. Each of you and the Company agree to use best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
B. Agreement to Binding Arbitration. If we do not reach an agreed upon solution within a period of thirty (30) days from the time informal dispute resolution is pursued pursuant to Section 13(A) above, then either party may initiate binding arbitration. All claims arising out of or relating to these Terms of Service (including their formation, performance and breach), the parties’ relationship with each other and/or your use of the Service shall be finally settled by binding arbitration administered on a confidential basis by JAMS, in accordance with the JAMS Streamlined Arbitration Rules and Procedures, excluding any rules or procedures governing or permitting class actions. Each party will have the right to use legal counsel in connection with arbitration at its own expense. The parties shall select a single neutral arbitrator in accordance with the JAMS Streamlined Arbitration Rules and Procedures. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms of Service, including, but not limited to, any claim that all or any part of these Terms of Service is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be in writing and provide a statement of the essential findings and conclusions, shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The interpretation and enforcement of these Terms of Service shall be subject to the Federal Arbitration Act.
The JAMS rules governing the arbitration may be accessed at https://www.jamsadr.com/adr-rules-procedures. If you initiate arbitration, to the extent the filing fee for the arbitration exceeds Two Hundred and Fifty U.S. Dollars ($250.00), we will pay the additional cost. If we are required to pay the additional cost of the filing fees, you should submit a request for payment of fees to JAMS along with your form for initiating the arbitration, and we will make arrangements to pay all necessary fees directly to JAMS. We will also be responsible for paying all other arbitration costs arising in connection with the arbitration other than costs incurred by you for legal counsel, travel and other out-of-pocket expenses. You will not be required to pay fees and costs incurred by the Company if you do not prevail in arbitration.
THE PARTIES UNDERSTAND THAT, ABSENT THIS MANDATORY PROVISION, THEY WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. THEY FURTHER UNDERSTAND THAT, IN SOME INSTANCES, THE COSTS OF ARBITRATION COULD EXCEED THE COSTS OF LITIGATION AND THE RIGHT TO DISCOVERY MAY BE MORE LIMITED IN ARBITRATION THAN IN COURT.
C. Class Action and Class Arbitration Waiver. You and the Company each further agree that any arbitration shall be conducted in your respective individual capacities only and not as a class action or other representative action, and you and the Company each expressly waive your respective right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above in Section 13(B) shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
D. Exception - Small Claims Court Claims. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
E. 30 Day Right to Opt Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in Sections 13(B), 13(C), and 13(D) by sending written notice of your decision to opt-out to the following email: firstname.lastname@example.org. The notice must be sent within thirty (30) days of registering to use the Service, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, we also will not be bound by them.
F. Exclusive Venue for Litigation. To the extent that the arbitration provisions set forth in Section 13(B) do not apply, the parties agree that any litigation between them shall be filed exclusively in state or federal courts located in Austin, Texas (except for small claims court actions which may be brought in the county where you reside). The parties expressly consent to exclusive jurisdiction Austin, Texas for any litigation other than small claims court actions.
G. Applicable Law. You agree that federal laws and the laws of the State of Texas, without regard to principles of conflict of laws, will govern these Terms of Service and any claim or dispute that has arisen or may arise between you and the Company.
14. Warranty Disclaimer; Limitation on Liability; Indemnity
A. Disclaimer of Warranties
(i) TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL ITEMS PROVIDED THROUGH THE SERVICE ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OR CONDITIONS OF ANY KIND. BY OPERATING THE SERVICE, WE DO NOT REPRESENT OR IMPLY THAT WE ENDORSE ANY MATERIALS, CONTRIBUTIONS OR ITEMS AVAILABLE ON OR LINKED TO BY THE SERVICE, OR THAT WE BELIEVE ANY MATERIALS, CONTRIBUTIONS OR OTHER ITEMS TO BE ACCURATE, USEFUL, NON-HARMFUL OR NON-INFRINGING. WE CANNOT GUARANTEE AND DO NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE. YOU AGREE THAT YOUR USE OF THE SERVICE WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE AND EACH OF OUR ADVERTISERS, LICENSORS, SUPPLIERS, OFFICERS, DIRECTORS, INVESTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS AND OTHER CONTRACTORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE AND YOUR USE THEREOF.
(ii) TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF THE SERVICE’S CONTENT, THE CONTENT OF ANY SITE LINKED TO THE SERVICE, CONTRIBUTIONS, INFORMATION OR ANY OTHER ITEMS OR MATERIALS ON THE SERVICE OR LINKED TO BY THE SERVICE. WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR (A) ANY ERRORS, MISTAKES OR INACCURACIES OF CONTENT AND MATERIALS, (B) ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE.
B. Limited Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE SERVICE, CONTRIBUTIONS, MATERIALS OR ANY OTHER CONTENT THEREIN. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS OF SERVICE, OUR LIABILITY TO YOU IN RESPECT OF ANY LOSS OR DAMAGE SUFFERED BY YOU AND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE, WHETHER IN CONTRACT, TORT OR FOR BREACH OF STATUTORY DUTY OR IN ANY OTHER WAY SHALL NOT EXCEED THE GREATER OF $100 OR THE AMOUNT PAID BY YOU TO US FOR ACCESS TO AND USE OF THE SERVICE.
C. Exceptions to Disclaimers and Liability Limitations. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN ONE OF THESE STATES OR JURISDICTIONS, THE LIMITATIONS OR EXCLUSIONS IN SECTIONS 14(A) AND 14(B) MAY NOT APPLY TO YOU.
D. Indemnity. YOU HEREBY AGREE, AT YOUR EXPENSE, TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE COMPANY, ITS OFFICERS, DIRECTORS, MEMBERS, MANAGERS, PARTNERS, AFFILIATES AND EMPLOYEES FROM AND AGAINST ANY LOSS, COST, DAMAGES, LIABILITY, AND/OR EXPENSE, INCLUDING REASONABLE ATTORNEY FEES, ARISING OUT OF OR RELATING TO THIRD PARTY CLAIMS, ACTIONS OR ALLEGATIONS BROUGHT AGAINST THE COMPANY ARISING OUT OF YOUR USE OF THE SERVICE. YOU WILL NOT BE REQUIRED TO INDEMNIFY AND HOLD THE COMPANY HARMLESS FROM AND AGAINST ANY CLAIMS, LIABILITIES, DAMAGES, LOSSES, OR EXPENSES RESULTING FROM THE COMPANY’S OWN NEGLIGENT CONDUCT.
15. Notice to New Jersey Users. Notwithstanding any terms set forth in these Terms of Service, if any of the provisions set forth in Section 14 are held unenforceable, void or inapplicable under New Jersey law, then any such provision shall not apply to you but the rest of these Terms of Service shall remain binding on you and the Company. In addition, for New Jersey residents, the limitation on liability is inapplicable where attorneys’ fees, court costs, or other damages are mandated by statue. Notwithstanding any provision in these Terms of Service, nothing in these Terms of Service is intended to, nor shall it be deemed or construed to, limit any rights available to you under the Truth-in-Consumer Contract, Warranty and Notice Act.
16. Notice to California Users. Under California Civil Code Section 1789.3, users located in California are entitled to the following consumer rights notice: If a user has a question or complaint regarding the Service, please send an email to email@example.com. Users may also contact us by writing to Wave, 5205 Airport Blvd Suite 200, Austin, TX 78751. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
17. Independent Contractors. Nothing in these Terms of Service shall be deemed to create an agency, partnership, joint venture, employer-employee or franchisor-franchisee relationship of any kind between us and any user.
18. Non-Waiver. Our failure to exercise or enforce any right or provision of these Terms of Service shall not operate as a waiver of the applicable right or provision.
19. Severability. These Terms of Service operate to the fullest extent permissible by law. If any provision or part of a provision of these Terms of Service is unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms of Service and shall not affect the validity and enforceability of any remaining provisions.
20. Assignment. We may assign our rights under these Terms of Service without your approval.
21. No Modifications by Our Employees. If any of our employees offers to modify the terms of these Terms of Service, he or she is not acting as an agent for us or speaking on our behalf. You may not rely, and should not act in reliance on, any statement or communication from our employees or anyone else purporting to act on our behalf.
22. Contact Information. If you have any questions about these Terms of Service or your account, please contact us at firstname.lastname@example.org.