Notice Regarding Dispute Resolution: This Agreement contains provisions that govern how claims you and YBVR have against each other are resolved (see Section 11 (Limitation of Liability), Section 15 (Dispute Resolution), and Section 16 (Choice of Law and Forum) below). It also contains an agreement to arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration, unless you opt-out of the agreement to arbitrate in accordance with Section 15(D). Unless you opt-out: (A) you will only be permitted to pursue claims against YBVR 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. Changes to this Agreement
We reserve the right to, at any time,
• (a) change the terms and conditions of this Agreement;
• (b) change the Services, including eliminating or discontinuing any downloadable application, content or other feature of the Services; or
• (c) deny or terminate your use of and/or access to the Services.
Any changes we make will be effective immediately upon our making such changes available on the Services (such as on the YBVR website or through the downloadable applications) or otherwise providing notice thereof and will apply to use of the Services thereafter. You agree that your continued use of the Services after such changes constitutes your acceptance of such changes. Be sure to return to this page periodically to ensure familiarity with the most current version of this Agreement.
2. Use of the Services and Applications
You may visit and browse our website and use a subset of the services without registering or creating an account. However, before using certain of the Services, you may need to register with YBVR and create an account. We reserve the right to decline to provide the Services to any person for any or no reason. If and when you register with or provide information to YBVR, you agree to: (a) provide accurate, current, and complete information as prompted (including your email address) and (b) maintain and update your information (including your email address) to keep it accurate, current, and complete. You acknowledge that, if any information provided by you is untrue, inaccurate, not current, or incomplete, we reserve the right to terminate this Agreement and your use of the Services. By providing YBVR with your email address or other contact information, you consent to our use of this information to send you Services-related notices and other administrative notices, including any notices required by law.
Please note that we may require users to pay certain fees to use the Services or view certain Content (as defined below). You are required to provide an acceptable payment method to pay such fees as a condition to use of such Services or viewing such Content.
You are solely responsible for the activity that occurs on your account, including but not limited to paying any and all applicable fees. You must keep your account credentials (including username and password) secure at all times. You may not share your account with any third parties without YBVR’s prior written consent unless such third party has separately entered an agreement with YBVR permitting it to access your account. You must notify YBVR immediately of any breach or suspected breach of security or unauthorized use of your account. YBVR will not be liable for any losses caused by any unauthorized use of your account.
In addition, we may offer downloadable mobile or other software applications (“App(s)”) for use in connection with the Services. The Apps are the property of YBVR, and are subject to and protected by United States and international copyright and other intellectual property laws and rights. You will not obtain any ownership interest in the Apps or the Services through this Agreement or otherwise. All rights to the Apps not expressly granted in this Agreement are reserved to YBVR. Provided you are in compliance with this Agreement, we grant to you a non-exclusive, non-transferable personal license to download the Apps onto a single device and to access and use the Apps solely for your personal use in using the Services in accordance with this Agreement. If you download the App from a third-party mobile app store (“App Store”), you agree to abide by the terms and conditions of the App Store and agree that the App Store shall have no liability for the App or your use of the Services.
You are solely responsible for arranging and paying for all access, including Internet and cellular access, necessary to use the Services. You may be charged message and data charges by your service provider for downloading and/or accessing an App on your mobile phone, tablet or other handheld device or personal computer (the “Device”). All charges are solely your responsibility. In addition, the App will only work on compatible devices and operating systems and certain functionality will only work if your Device is connected to the Internet. Some features may also only be available with certain operating systems.
The Services may allow you to view certain video and other content (“Content”) provided by YBVR and its licensors. Such Content is subject to and protected by United States and international copyright and other intellectual property laws and rights. You will not obtain any ownership interest in the Content through this Agreement or otherwise. All rights to the Content not expressly granted in this Agreement are reserved to their respective copyright owners. Provided you are in compliance with this Agreement, including payment of any applicable fees, you are given a non-exclusive, non-transferable right to view the Content on your Device for your personal purpose. YOU MAY NOT PUBLICLY DISPLAY, REPRODUCE, RETRANSMIT OR BROADCAST THE CONTENT IN WHOLE OR IN PART.
You represent and warrant that you have the full right, power, authority, and legal capacity to enter into and perform this Agreement without the consent or approval of any third party.
4. Third Party Links
5. YBVR Communications
You agree that we may send you communications (via email or through the Services, including in-App messaging) regarding your use of the Services, and certain features or applications of the Services you may be interested in. To the extent you have opted to receive communications, newsletters, or offers from us regarding third-party products and services, you hereby authorize YBVR to deliver such communications to you via email or through the Services, including in-App messaging.
6. Rules Governing Your Use of the Services
You may not use the Services, or assist or encourage any other party, to engage in any of the following prohibited activities:
• copying, framing, or mirroring any part of the Services;
• copying, reproducing, transmitting, publicly performing or displaying or otherwise using any of the Content, in whole or in part, for any commercial or unauthorized purpose;
• accessing the Services for purposes of monitoring its availability, performance, or functionality;
• permitting any third party to access the Services or the Content;
• using, copying, modifying, creating a derivative work of, reverse engineering, decompiling, or otherwise attempting to extract the source code of the software underlying the Services or any part thereof, unless expressly permitted or required by law, and in any case, without providing prior written notice to YBVR;
• publishing, transmitting, distributing, or storing content, material, information, or data that: (a) is illegal, obscene, defamatory, libelous, threatening, harassing, abusive, or hateful or that advocates violence or threatens the health of others; (b) is harmful to or interferes with the Services or any third party’s networks, equipment, applications, services, or websites (e.g., viruses, worms, Trojan horses, etc.); (c) infringes, dilutes, misappropriates, or otherwise violates any privacy, intellectual property, publicity, or other personal rights including, without limitation, copyrights, patents, trademarks, trade secrets, or other proprietary information (including unauthorized use of domain names); or (d) is fraudulent or contains false, deceptive, or misleading statements, claims, or representations (such as “phishing”);
• attempting to disrupt, degrade, impair, or violate the integrity or security of the Services or the computers, services, accounts, or networks of any other party (including, without limitation, “hacking,” “denial of service” attacks, etc.), including any activity that typically precedes attempts to breach security such as scanning, probing, or other testing or vulnerability assessment activity, or engaging in or permitting any network or hosting activity that results in the blacklisting or other blockage of YBVR internet protocol space;
• avoiding payment of incurring charges or fees payable by you with respect to the Services;
• copying, distributing, or disclosing any part of the Services in any medium, including without limitation by any automated or non-automated “scraping”;
• using any automated system, including, without limitation, “robots,” “spiders,” “offline readers,” etc., to access the Services in a manner that sends more request messages to YBVR than a human can reasonably produce in the same period of time by using a conventional web browser;
• taking any action that imposes, or may impose, at our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
• collecting or harvesting any personally identifiable information, including account names, from the Services;
• using the Services for any commercial solicitation purposes;
• impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, or hiding or attempting to hide your identity;
• accessing any content on the Services through any technology or means other than those provided or authorized by the Services;
• causing or launching any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services;
• submitting to the Services or to YBVR any personally identifiable information, except as necessary for the establishment and operation of your account;
• submitting to the Services or to YBVR any information that may be protected under the Health Insurance Portability and Accountability Act, as amended and supplemented, or any other information that may be protected from disclosure by applicable law;
• bypassing the measures we may use to prevent or restrict access to the Services, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein;
• violating any applicable law, statute, ordinance, or regulation, or encouraging any conduct that could constitute a criminal offense or give rise to civil liability;
• transmitting any trade secret or other material, non-public information about any person, company, or entity without the authorization to do so;
• removing any copyright, trademark, or other proprietary rights notices contained in or on the Services;
• sublicensing, selling, renting, leasing, transferring, assigning, or conveying any rights under this Agreement to any third party, except as expressly permitted herein;
• executing any form of network monitoring or running a network analyzer or packet sniffer or other technology to intercept, decode, mine, or display any packets used to communicate between the Services’ servers or any data not intended for you; and/or
• harvesting or collecting information about the Services’ visitors or members without their express consent.
Improper use of the Services may result in termination of your access to and use of the Services, and/or civil or criminal liabilities. You agree to use the Services in accordance with all applicable laws.
7. Intellectual Property
Your Rights. Subject to the terms and conditions of this Agreement (including any restrictions on any applicable authorization or order form and payment of any applicable fees), you are hereby granted a non-exclusive, non-transferable, non-sublicensable, and revocable license to access and use the Services solely for your own internal personal use. YBVR reserves all rights not expressly granted herein in the Services. Except as expressly set forth herein, no rights or licenses are granted to you under this Agreement, whether by implication, estoppel, or otherwise.
Feedback and Improvements. You may choose to, or we may invite you to submit comments, suggestions, feedback, or ideas about the Services, including, without limitation, about how to improve the Services or our products (“Feedback”). By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited and without restriction. We are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. YBVR will be free to use, disclose, reproduce, license, distribute, modify, perform, display, and exploit the Feedback you provide, without any restriction of any kind on account of intellectual property rights or otherwise. You further acknowledge that, by acceptance of your submission, YBVR does not waive any rights to use similar or related ideas previously known to YBVR, or developed by its employees, or obtained from sources other than you.
C. Proprietary Rights. The Services are owned and operated by YBVR, and the Services and Content provided through the Services (and any intellectual property and other rights relating thereto) is and will remain the property of YBVR and its licensors and suppliers. The Services and Content are protected by U.S. and international copyright, trademark, and other laws, and you acknowledge that these rights are valid and enforceable. The Services and Content may be used solely (a) to the extent permitted in this Agreement or (b) as expressly authorized in writing by authorized representatives of YBVR or, if so indicated in writing by YBVR, its licensors or suppliers. Use of the Services and Content for any other purpose is strictly prohibited. You acknowledge that you do not acquire any ownership rights by using the Services or Content. The trademarks, logos, and service marks displayed on the Services (collectively, the “Company Trademarks”) are the registered and unregistered trademarks of YBVR, YBVR’s licensors and suppliers, and/or others. Nothing contained in this Agreement or the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Company Trademark(s) without the express written permission of YBVR, YBVR’s licensors or suppliers, or the third-party owner of any such Company Trademark.
8. No Use by Children Under 13
You hereby affirm that you are over the age of thirteen (13), as the Services are not intended for children under 13. If you are under 13 years of age, then you may not use the Services. You further affirm that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement.
9. Term & Termination
This Agreement is effective from the date on which you first access the Services or submit any information to YBVR, whichever is earlier, and shall remain effective until terminated in accordance with its terms. YBVR may immediately terminate this Agreement, and/or your access to and use of the Services, Content or any App, or any portion thereof, at any time and for any reason, with or without cause, without prior notice. YBVR may also terminate this Agreement immediately if you fail to comply with any term or provision of this Agreement. Upon termination of this Agreement by either party, your right to use the Services shall immediately cease, and you shall cease all use of the Services. Upon termination or expiration of this Agreement for any reason, Sections 1, 2 (with respect to restrictions only, but not any licenses), and 3–17 shall survive.
We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services, or any part or portion thereof, with or without notice to you. You agree that we shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services, or any part of portion thereof. Nothing in this Agreement shall be construed to obligate YBVR to maintain and support the Services, or any part or portion thereof, during the term of this Agreement.
THE SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE, AND ANY WARRANTIES THAT THE SERVICES ARE CURRENT AND/OR UP-TO- DATE ARE HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW.
THERE IS NO WARRANTY, REPRESENTATION, OR GUARANTEE THAT THE SERVICES, OR YOUR USE OF THE SERVICES OR CONTENT, WILL BE UNINTERRUPTED, COMPLETE, ACCURATE, CURRENT, RELIABLE, ERROR-FREE, SECURE, OR THAT ANY PROBLEMS WILL BE CORRECTED, OR THAT THE SERVICES, OR ANY INFORMATION, SOFTWARE, CONTENT OR OTHER MATERIAL ACCESSIBLE FROM THE SERVICES, IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATION REGARDING THE USE OF, OR THE RESULTS OF THE USE OF, THE SERVICES AND YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICES AND CONTENT, AND YOUR RELIANCE THEREON.
YBVR MAKES NO WARRANTY, REPRESENTATION, OR GUARANTEE WITH RESPECT TO CONTENT, PRODUCTS AND SERVICES OFFERED BY THIRD PARTIES ON THE SERVICES, AND YBVR SPECIFICALLY DISCLAIMS ANY WARRANTY, REPRESENTATION, OR GUARANTEE WITH RESPECT TO THE QUALITY, SAFETY, LEGALITY, OR OTHER CHARACTERISTICS OF SUCH CONTENT, PRODUCTS AND SERVICES, OR WITH RESPECT TO THE CONDUCT OF ANY THIRD PARTY IN CONNECTION WITH SUCH OFFERS OR SALES.
11. Limitation of Liability
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND, NEITHER YBVR NOR ANY OF ITS LICENSORS, SPONSORS, AGENTS, SUCCESSORS, OR ASSIGNS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, OR OTHER REPRESENTATIVES, ARE RESPONSIBLE OR LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS, LOST SAVINGS, OR LOSS OF DATA) OR LIABILITIES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY MANNER TO THE SERVICES, CONTENT, APP AND/OR ANY LINKED WEBSITE, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES. YOUR SOLE REMEDY WITH RESPECT TO THE SERVICES, CONTENT, APP OR ANY LINKED WEBSITE IS TO STOP USING THE SERVICES, CONTENT, APP OR LINKED WEBSITE, AS APPLICABLE. NEITHER YBVR NOR ANY OF ITS LICENSORS, SPONSORS, AGENTS, SUCCESSORS, OR ASSIGNS, NOR ITS OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, OR OTHER REPRESENTATIVES WILL HAVE ANY LIABILITY TO YOU FOR ANY DAMAGES, EXPENSES, OR OTHER LIABILITY INCURRED BY YOU AS A RESULT OF ANY INACCURACY, INCOMPLETENESS, OR MISREPRESENTATION OF ANY INFORMATION, CONTENT, OR SUBMISSIONS PROVIDED OR POSTED ON THE SERVICES BY THIRD PARTIES.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES AND/OR LIABILITIES, SO CERTAIN OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
You (and also any third party for whom you operate an account on the Services) agree to fully indemnify, defend (at YBVR’s request), and hold YBVR, our licensors, suppliers, agents, successors, and assigns, and our and their directors, officers, employees, consultants, and other representatives (“YBVR Parties”) harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees), and other expenses that arise directly or indirectly out of or from: (a) your actual or alleged breach of this Agreement; (b) any allegation that any materials you submit to us or transmit to the Services infringe, misappropriate, or otherwise violate the copyright, patent, trademark, trade secret, or other intellectual property or other rights of any third party; (c) your activities in connection with the Services or other websites to which the Services are linked; (d) your negligence or willful misconduct; (e) your use of the results, content, data, or information provided via the Services; (f) any service or product offered by you in connection with or related to your use of the Services; and/or (g) your violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities.
13. Jurisdictional Issues
YBVR makes no representation that the Services operate (or is legally permitted to operate) in all geographic areas, or that the Services are appropriate or available for use in other locations. Accessing the Services from territories where the Services or any content or functionality of the Services or portion thereof is illegal is expressly prohibited. If you choose to access the Services, you agree and acknowledge that you do so on your own initiative and at your own risk, and that you are solely responsible for compliance with all applicable laws. The Services are operated from the United States. If you are located outside of the United States and choose to use the Services or provide your information to us, your information will be transferred, processed, and stored in the United States. U.S. privacy laws may not be as protective as those in your jurisdiction. Your agreement to the terms of this Agreement followed by your submission of information in connection with the Services represents your agreement to this practice. If you do not want your information transferred to or processed or stored in the United States, you should not use the Services. In addition, certain Content may not be available to users in certain jurisdiction. We monitor the jurisdiction or geographical location from which you access the Content to comply with any restrictions regarding the distribution of Content; you agree that we can monitor your location through IP Address or location of the Device you use to view Content.
14. Notice for California Users
Under California Civil Code Section 1789.3, California Services users are entitled to the following specific consumer rights notice: This website and the Services are provided by Yerba Buena VR, Inc., 4444 Yerba Buena Ave, San Jose, CA 95121. The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.
15. Dispute Resolution
Arbitration. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through good-faith negotiations, which shall be a precondition to either party initiating a lawsuit or arbitration. Except for disputes relating to YBVR’s or its licensor’s intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents) or if you opt out of this agreement to arbitrate, all claims arising out of or relating to this Agreement and your use of the Services shall be finally settled by binding arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules and of its supplementary procedures for consumer-related disputes, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court; provided, however, that the arbitrator will not have authority to award damages, remedies, or awards that conflict with this Agreement. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, YBVR will pay the additional cost. You agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if YBVR is a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act.
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 that the right to discovery may be more limited in arbitration than in court.
Class-Action Waiver. The parties further agree that any arbitration shall be conducted in their individual capacities only, and not as a class action or other representative action. If any court or arbitrator determines that the class-action waiver set forth in this section is void or unenforceable for any reason, or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception-Litigation of Small-Claims- Court Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
Time Limitation on Claims. You agree that any claim you may have arising out of or related to your relationship with YBVR and this Agreement must be filed within one (1) year after such claim arose; otherwise, your claim is permanently barred.
16. Choice of Law and Forum
This Agreement and your relationship with the YBVR Parties shall be governed by, and construed and interpreted in accordance with, the laws of the State of California without regard to its conflict of laws principles AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. Subject to Section 15, the parties irrevocably consent to bring any action to enforce this Agreement in the federal or state courts located in Santa Clara, California. You consent to the exclusive jurisdiction of the federal or state courts located in Santa Clara, California.
17. U.S. Government Restricted Rights
The Services shall be deemed “commercial computer software” pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction release, performance, display or disclosure of the Services by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable except with the other party’s prior written consent; provided, however, that either party may assign this agreement in connection with a merger, acquisition or sale of all or substantially all of the party’s assets to which this Agreement relates. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither you nor Yerba Buena has any authority of any kind to bind the other party in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Yerba Buena will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in Santa Clara County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement. You, upon prior written agreement between the parties agrees to participate in press announcements, case studies, and trade shows.
The Services are Operated By
4444 Yerba Buena Ave
San Jose, CA, 95121
Effective Date: May 16, 2019