PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
Effective date: [9/19/2020]
Welcome to Wave. Please read on to learn the rules and restrictions that govern your use of our website(s), products, services, applications and related technology and services provided through our software applications (the “Services”). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at:
Address: 3381 Roberson Pl, Los Angeles, CA 90034
Please read these Terms carefully. They cover important information about Services provided to you and any charges, taxes, and fees we bill you. These Terms include information about future changes to these Terms, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
Will these Terms ever change?
We are constantly trying to improve our Services, so these Terms may need to change along with our Services. We reserve the right to change the Terms at any time, but if we do, we will place a notice on our site located at wavexr.com, send you an email, and/or notify you by some other means.
If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
What about my privacy?
Children’s Online Privacy Protection Act
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under thirteen (13). We do not knowingly collect or solicit personally identifiable information from children under thirteen (13); if you are a child under thirteen (13), please do not attempt to register for or otherwise use the Services or send us any personal information. If we learn we have collected personal information from a child under thirteen (13), we will delete that information as quickly as possible. If you believe that a child under thirteen (13) may have provided us personal information, please contact us at email@example.com.
What are the basics of using Wave?
You may be required to sign up for an account, select a password and user name (“Wave User ID”), and provide us with certain information or data, such as your contact information. You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your Wave User ID a name that you do not have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.
For certain functionality, you may also be required or wish to have an Internet-enabled third party virtual reality headset device (a “VR Device”) or an Internet-enabled third party Windows PC (a “PC Computer”) that is compatible with the Services in order to access and use certain features and functionality of the Services. You are solely responsible for ensuring that your VR Device or PC Computer is compatible with the Services. The applicable third party provider of the VR Device or PC Computer, and not the Company, is solely responsible for any warranties, liabilities and all other matters relating to the VR Device or PC Computer.
Additionally, you may be able to access certain parts or features of the Services by using your account credentials from other services (each, a “Third Party Account”), such as those offered by Google or Facebook. By using the Services through a Third Party Account, you permit us to access certain information from such account for use by the Services. You are ultimately in control of how much information is accessible to us and may exercise such control by adjusting your privacy settings on your Third Party Account. Please review the terms of service that are applicable to the Third Party Account to understand your rights and obligations in connection with your use of the applicable Third Party Account. You agree to comply with, and your license to use the Services is conditioned upon, your compliance with the terms of service that are applicable to the Third Party Account. To the extent that other terms and conditions from the applicable Third Party Account are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions in these Terms will apply to your use of the Services.
You represent and warrant that you are an individual of legal age to form a binding contract (or if not, you’ve received your parent’s or guardian’s permission to use the Services and have gotten your parent or guardian to agree to these Terms on your behalf).
You will only use the Services for your own internal, personal, non-commercial use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law.
You will not share your Wave User ID, account or password with anyone, and you must protect the security of your Wave User ID, account, password and any other access tools or credentials. You’re responsible for any activity associated with your Wave User ID and account.
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 Services; or (b) virtual in-game items (together with virtual currency, “Virtual Goods”). Please note that you do not in fact “own” the Virtual Goods, and the amounts of any Virtual Goods 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 Services. Virtual Goods are not redeemable for cash, cannot be purchased for cash, and have no cash value, and you may not transfer Virtual Goods you have earned to any other user unless expressly allowed by us and only in accordance with applicable law. You may not sell or transfer, or attempt to sell or transfer, Virtual Goods, except as specifically permitted as part of the Services. 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.
What about messaging?
Are there restrictions in how I can use the Services?
You represent, warrant, and agree that you will not contribute any Content or User Submission (each of those terms is defined below) or otherwise use the Services or interact with the Services in a manner that:
- infringes or violates the intellectual property rights or any other rights of anyone else (including Wave);
- violates any law or regulation, including, without limitation, any applicable export control laws, privacy laws or any other purpose not reasonably intended by Wave;
- is abusive, violent, threatening, obscene, dangerous, harmful, harassing, fraudulent, deceptive, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable or offensive, or that would otherwise be deemed criminal if done in the real world;
- jeopardizes the security of your Wave User ID, account or anyone else’s (such as allowing someone else to log in to the Services as you);
- attempts, in any manner, to obtain the password, account, or other security information from any other user;
- solicits, collects, harvests or posts anyone’s private information, including personally identifiable information (whether in text, image or video form), identification documents, or financial information through the Service (or attempts to do any of those things);
- violates the security of any computer network, or cracks any passwords or security encryption codes;
- attempts, in any manner, to install, 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;
- runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
- attempts to bypass any robot exclusion headers or other measures we employ to restrict access to the Services;
- “crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
- copies, modifies or distributes Content from the Services or Wave’s copyrights or trademarks, or uses any method to copy or distribute the content of the Services except as specifically allowed in these Terms; or
- decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.
You also will not use the Services or any part thereof for performing services within the virtual reality experience, such as power-leveling or Virtual Goods collection services, in exchange for payment outside the Service.
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
We reserve the right, but do not undertake the obligation to: (i) monitor or review the Services for violations of these Terms and for compliance with our policies; (ii) report to law enforcement authorities and/or take legal action against anyone who violates these Terms; (iii) refuse, restrict access to or the availability of, or remove, delete, edit or disable (to the extent technologically feasible) any Content or any User Submissions on the Services; (iv) manage the Services in a manner designed to protect our and third parties’ rights and property or to facilitate the proper functioning of the Services; (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, any applicable law or regulation, or the rights of any third party.
What are my rights in the Services?
You understand that Wave owns the Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this section), redistribute, create derivative works based on, or otherwise exploit any of the Services. The materials displayed or performed or available on or through the Services, including, but not limited to, all music, video, images, photos, graphics, data, text, messages, comments or other audio, visual or other content and names and likenesses, User Submissions (as defined below), and the trademarks, service marks, brands, logos and patented technologies contained on or in the Services (all of the foregoing, the “Content”) are protected by copyright, patent, trademark, publicity rights and other intellectual property or proprietary rights under United States and foreign laws and international conventions. Using our Services does not give you ownership of any intellectual property rights in the Services, the Content, any User Submissions, or any other content you access through the Services, or any rights to use any of them except as explicitly set forth in these Terms. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, create derivative works of, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Wave’s) rights.
Subject to these Terms, we grant each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for any purpose other than using the Services is expressly prohibited without prior written permission from us. The Services may allow you to copy or download certain Content, but please remember that even where these functionalities exist, all the restrictions in these Terms still apply.
What about anything I contribute to the Services – do I have to grant any licenses to Wave or to other users?
Anything you post, upload, share, store, or otherwise provide through the Services (including without limitation, any chat messages you may post or share during any of Wave’s live concerts) is your “User Submission”. Some User Submissions may be viewable by other users. You are solely responsible for all User Submissions you contribute to the Services, and all User Submissions by other users are the sole responsibility of those users. You represent that all User Submissions submitted by you are accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. You also represent that you own or have sufficient rights to submit, create, post, transmit or make available your User Submissions on or through the Services, to grant the rights in your User Submissions that you grant in these Terms, and that our use of your User Submissions as set forth in these Terms will not violate any other person’s rights.
You also agree that you will not post, upload, share, store, or otherwise provide through the Services any User Submissions that: (i) infringe or violate any other person’s privacy rights, publicity rights, intellectual property rights (including without limitation trademark, patent or copyrights) or contract rights; (ii) 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; (iii) incite, encourage or threaten immediate physical harm against another, including but not limited to, User Submissions that promote racism, bigotry, sexism, religious intolerance or harm against any group or individual; (iv) exploit minors; (v) depict unlawful acts or extreme violence; (vi) depict animal cruelty or extreme violence towards animals; (vii) promote fraudulent schemes, multi-level marketing (MLM) schemes, get rich quick schemes, online gaming and gambling, cash gifting, work from home businesses, or any other dubious money-making ventures; or (viii) that violate any law.
By submitting User Submissions through the Services, you hereby do and shall grant Wave a worldwide, non-exclusive (meaning you are free to license your User Submission to anyone else in addition to us), perpetual, royalty-free, fully paid (meaning that we are not required to pay you to use your User Submission), sublicensable (so that we can use affiliates, subcontractors and other partners such as wireless carriers and hosted service providers to make the Services available to you), assignable and transferable license to use, edit, modify, truncate, aggregate, reproduce, distribute, create derivative works of, publish, copy, display, perform, and otherwise fully exploit the User Submissions in connection with this site, the Services and our (and our successors’ and assigns’) businesses, including without limitation for promoting and redistributing part or all of this site or the Services (and derivative works thereof) in any media formats and through any media channels now known or subsequently created (including, without limitation, third party websites and feeds), and including after your termination of your account or the Services. You also hereby do and shall grant each user of this site and/or the Services a non-exclusive, perpetual license to access your User Submissions through this site and/or the Services, and to use, edit, modify, reproduce, distribute, create derivative works of, display and perform such User Submissions, including after your termination of your account or the Services as permitted by these Terms and the functionality of the Services. For clarity, the foregoing license grants to us and our users do not affect your other ownership or license rights in your User Submissions, including the right to grant additional licenses to your User Submissions, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
Certain features of the Services allow you to share information with others, including through your social networks or other Third Party Accounts. When Content is authorized for sharing, we will clearly identify the Content you are authorized to redistribute and the ways you may redistribute it, usually by providing a “share” button on or near the Content. If you share information from the Services with others through your Third Party Accounts, such as your social networks, you authorize Wave to share that information with the applicable Third Party Account provider. Please review the policies of any Third Party Account providers you share information with or through for additional information about how they may use your information. If you redistribute Content, you must be able to edit or delete any Content you redistribute, and you must edit or delete it promptly upon our request.
Finally, you understand and agree that Wave, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.
What if I see something on the Services that infringes my copyright?
In accordance with the DMCA, we’ve adopted the following policy toward copyright infringement. We reserve the right to (1) block access to or remove material that we believe in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users and (2) remove and discontinue service to repeat offenders.
- Procedure for Reporting Copyright Infringements. If you believe that material or content residing on or accessible through the Services infringes your copyright (or the copyright of someone whom you are authorized to act on behalf of), please send a notice of copyright infringement containing the following information to Wave’s Designated Agent to Receive Notification of Claimed Infringement (our “Designated Agent,” whose contact details are listed below):
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
- Identification of works or materials being infringed;
- Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Company is capable of finding and verifying its existence;
- Contact information about the notifier including address, telephone number and, if available, email address;
- A statement that the notifier has a good faith belief that the material identified in (1)(c) is not authorized by the copyright owner, its agent, or the law; and
- A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
- Once Proper Bona Fide Infringement Notification is Received by the Designated Agent. Upon receipt of a proper notice of copyright infringement, we reserve the right to:
- remove or disable access to the infringing material;
- notify the content provider who is accused of infringement that we have removed or disabled access to the applicable material; and
- terminate such content provider’s access to the Services if he or she is a repeat offender.
- Procedure to Supply a Counter-Notice to the Designated Agent. If the content provider believes that the material that was removed (or to which access was disabled) is not infringing, or the content provider believes that it has the right to post and use such material from the copyright owner, the copyright owner’s agent, or, pursuant to the law, the content provider may send us a counter-notice containing the following information to the Designated Agent:
- A physical or electronic signature of the content provider;
- 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 disabled;
- A statement that the content provider has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
- Content provider’s name, address, telephone number, and, if available, email address, and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider’s address is located, or, if the content provider’s address is located outside the United States, for any judicial district in which Company is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Designated Agent, Company may, in its discretion, send a copy of the counter-notice to the original complaining party informing that person that Company may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider accused of committing infringement, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at Company’s discretion.
Please contact Wave’s Designated Agent at the following address:
Attn: Copyright Infringement Designated Agent
3381 Roberson Pl, Los Angeles, CA 90034
Who is responsible for what I see and do on the Services?
Any information or Content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such Content originated, and you access all such information and Content at your own risk, and we aren’t liable for any errors or omissions in that information or Content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We can’t guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.
You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it.
We want use of the Services to be a positive experience for our users, and we expect that our users will treat each other with dignity and respect. 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. Keep in mind though, that Wave has no control over, and assumes no responsibility for, the actions of users of the Services.
Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Wave shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
Additionally, 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 Services and that you give to other users of the Services. Information provided through the Services by other users of the Services 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 Services. Opinions, comments and other statements made by users of the Services do not represent the opinions or statements of Wave, and Wave does not support or endorse opinions or statements made by users of the Services.
If there is a dispute between participants on this site or Services, or between users and any third party, you agree that Wave is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Wave, its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services.
You shall and hereby do waive California Civil Code Section 1542 or any similar law of any jurisdiction, which says in substance:
“A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
Health and Safety Precautions. Certain of the Services 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 Services. 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 Services. If you feel dizzy, tired, fatigued or uncomfortable when using the Services, please stop using the Services. If these symptoms continue after you have stopped using the Services, please consult a doctor.
PLEASE FOLLOW THESE PRECAUTIONS WHENEVER USING THE SERVICE:
- Only use the Services in a safe environment.
- Be aware of your surroundings before using the Services.
- Do not use the Services if you are sick, under the influence of alcohol or drugs, or hung-over.
- Do not use the Services while in a moving vehicle such as a car, bus, or train.
- Do not use the Services for too long at any one time, we suggest you take a 10 to 15 minute break every 30 minutes.
Will Wave ever change the Services?
We’re always trying to improve our Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We’ll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn’t always practical. We reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
Do the Services cost anything?
The Services may be free or we may charge a fee for using the Services. If you are using a free version of the Services, we will notify you before any Services you are then using begin carrying a fee, and if you wish to continue using such Services, you must pay all applicable fees for such Services. Note that if you elect to receive text messages through the Services, data and message rates may apply. Any and all such charges, fees or costs are your sole responsibility. You should consult with your wireless carrier to determine what rates, charges, fees or costs may apply to your use of the Services.
- Paid Services. Certain of our Services may be subject to payments now or in the future (the “Paid Services”). Please see our Paid Services page for a description of the current Paid Services. Please note that any payment terms presented to you in the process of using or signing up for a Paid Service are deemed part of these Terms. For more information regarding refunds of the Paid Services, please visit our Refunds Policy.
- Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
- Current Information Required. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE IN YOUR ACCOUNT SETTINGS. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.
- Change in Amount Authorized. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
- Free Trials and Other Promotions. Any free trial or other promotion that provides access to a Paid Service must be used within the specified time of the trial. You must stop using a Paid Service before the end of the trial period in order to avoid being charged for that Paid Service. If you cancel prior to the end of the trial period and are inadvertently charged for a Paid Service, please contact us at email@example.com.
What if I want to stop using the Services?
Wave is also free to terminate (or suspend access to) your use of the Services or your account for any reason in our discretion, including your breach of these Terms. Wave has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account. We will try to provide advance notice to you prior to our terminating your account so that you are able to retrieve any important User Submissions you may have stored in your account (to the extent allowed by law and these Terms), but we may not do so if we determine it would be impractical, illegal, not in the interest of someone’s safety or security, or otherwise harmful to the rights or property of Wave.
If you have deleted your account by mistake, contact us immediately at firstname.lastname@example.org – we may try to help, but unfortunately, we can’t promise that we can recover or restore anything.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us, including without limitation the arbitration provision.
What else do I need to know?
Warranty Disclaimer. Wave and its licensors, suppliers, partners, parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, managers, partners, affiliates, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns (Wave and all such parties together, the “Wave Parties”) make no representations or warranties concerning the Services, including without limitation regarding any Content contained in or accessed through the Services, and the Wave Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to your participation in, the Services. The Wave Parties make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through or in connection with the Services. THE SERVICES AND CONTENT ARE PROVIDED BY WAVE (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY CONTENT WILL BE ACCURATE. BY OPERATING THE SERVICES, WE DO NOT REPRESENT OR IMPLY THAT WE ENDORSE ANY USER SUBMISSIONS OR ITEMS AVAILABLE ON OR LINKED TO BY THE SERVICES, OR THAT WE BELIEVE ANY USER SUBMISSIONS OR OTHER ITEMS TO BE ACCURATE, USEFUL, NON-HARMFUL OR NON-INFRINGING. YOU AGREE THAT YOUR USE OF THE SERVICES WILL BE AT YOUR SOLE RISK.
FURTHER, WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR (A) ANY ERRORS, MISTAKES OR INACCURACIES OF ANY CONTENT, (B) ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES, (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 SERVICES, (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 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 SERVICES.
SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE WAVE PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) ONE-HUNDRED ($100) DOLLARS OR (II) THE AMOUNTS PAID AND/OR PAYABLE BY YOU TO WAVE IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Indemnity. To the fullest extent allowed by applicable law, you agree to indemnify and hold the Wave Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms.
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Wave’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of California, without regard to the conflicts of laws provisions thereof.
Arbitration. Please read the following arbitration provision carefully because it requires you to arbitrate certain disputes and claims with Wave and limits the manner in which you can seek relief from Wave. Both you and Wave acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Wave’s officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
- Arbitration Rules; Applicability of Arbitration. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in Los Angeles, California. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
- Costs of Arbitration. The Rules will govern payment of all arbitration fees. Wave will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. Wave will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
- Small Claims Court; Infringement. Either you or Wave may assert claims, if they qualify, in small claims court in Los Angeles, California or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
- Waiver of Jury Trial. YOU AND WAVE WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Wave are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Wave over whether to vacate or enforce an arbitration award, YOU AND WAVE WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION PROVISION MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Wave is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
- Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: 5205 Airport Blvd, Suite 200, Austin, TX 78751, postmarked within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of these Terms’ arbitration provisions.
- Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration provision permits either you or Wave to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration provision will not apply to either party, and both you and Wave agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, [Travis County, Texas], or the federal district in which that county falls.
- Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this arbitration provision will be null and void. This arbitration provision will survive the termination of your relationship with Wave.
Notice to New Jersey Users. Notwithstanding anything else in these Terms, if any of the provisions above regarding warranty disclaimers or limitations of liability 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 shall remain binding on you and Wave. 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, nothing in these Terms 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.
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 at 3381 Roberson Pl, Los Angeles, CA 90034. 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.
Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the Wave may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Wave agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Wave, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. If any of our employees offers to modify the terms of these Terms, that employee 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. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Wave, and you do not have any authority of any kind to bind Wave in any respect whatsoever.
Except as expressly set forth in the section above regarding the arbitration provision, you and Wave agree there are no third-party beneficiaries intended under these Terms.